Burgess, Sandra v Gillies Bros Pty Ltd and VWA

[2009] VCC 1767

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BENDIGO
CIVIL DIVISION
DAMAGES/COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-00844

SANDRA BURGESS	Plaintiff
v
GILLIES BROS PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	18 November 2009
DATE OF JUDGMENT:	19 November 2009
CASE MAY BE CITED AS:	Burgess, Sandra v Gillies Bros Pty Ltd & VWA
MEDIUM NEUTRAL CITATION:	[2009] VCC 1767

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the consequences produced by an injury to the plaintiff’s lower back were at least very considerable: section 134 AB (38)(c)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Richards SC with	Arnold Dallas McPherson
Mr M Schulze
For the Defendant	Ms S Manova with	Hall & Wilcox
Ms H Donmez
HIS HONOUR:

Introduction

1 Before the Court is an application brought by Originating Motion filed on 4 March 2009 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant .

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

3          Mr J Richards SC appeared with Mr M Schulze of Counsel for the plaintiff, and Mr S Manova appeared with Ms H Donmez of Counsel 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 20-84 and 90-122: Exhibit A;

• the defendant tendered its Court Book ("DCB"), pages 15-32; 65-76 and 104: Exhibit 1.

6          The application is brought under the definition of “serious injury” contained in subsection (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 suffered a compensable injury, that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(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”.[2]
(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 at 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)	Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event, an approach which I intend to follow in the present case.
(f)	In conformity with Barwon Spinners, 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 subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(g)	In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[3]

[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[2]             Barwon Spinners, at paragraph 33

[3] (1994) 1 VR 436

8          I am required by section 134AE 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 Plaintiff's Background

9          The plaintiff was born on 3 April 1967. She is now forty-two years of age. She is single. She lives with her eighty-five-year-old infirm mother.

10        The plaintiff last attended White Hills Technical College where she completed Year 10.

11        The plaintiff commenced employment with the first defendant in about April 2003 as a process worker at its factory in Bendigo.

The Incident Causing Injury

12        On 19 November 2004, the plaintiff suffered injury to her lower back using a pallet jack which was stacked with empty pallets.

13        The plaintiff saw Dr Karim, general practitioner, for treatment. She was off work for a short time. She returned to work on 20 December 2004. Dr Karim referred the plaintiff to Mr Williams, orthopaedic surgeon, who saw her on 14 January 2005. The plaintiff had some physiotherapy. She was able to return to normal duties by about March 2004, and was thereafter essentially pain- free.

14        On 27 June 2005, the plaintiff suffered further injury to her lower back. A co- worker asked her to give assistance to re-fix an industrial fridge door back onto its rollers. In the course of giving that assistance, she developed severe pain in her lower back.

The Plaintiff's Medical Treatment

15        Dr Karim left Bendigo before the plaintiff's solicitors were able to obtain a report directly from him. A report was obtained, but from Dr Snow, general practitioner, who works at the same clinic where Dr Karim formerly worked.

16        Dr Snow provided a report dated 19 September 2006 which he compiled from information obtained from the plaintiff's case notes.

17        The plaintiff saw Dr Karim on 26 June 2005. He diagnosed a lumbar strain injury with lumbar spondylitis and bilateral pars defect at L5. She was treated with medication and referral to physiotherapy.

18        Dr Karim had previously referred the plaintiff to have a plain x-ray of her lower back which was taken on 24 November 2004.[4] Later, Dr Chan,[5] general practitioner, referred the plaintiff to have a CT scan which was taken on 9 December 2004.[6]

[4]             PCB 113

[5]             Dr Chan was the plaintiff's usual family doctor. She was unable to see him after the second incident occurred. She saw Dr Karim in the meantime.

[6]             PCB 114

19        The plaintiff first saw Mr Williams on 14 January 2005. The plaintiff told Mr Williams that she had suffered pain in her lower back with radiation of pain into her right lower limb. When he saw her that pain had subsided. She had some pain localised in her left sacroiliac joint.

20        Mr Williams had available for his inspection both the plain x-ray and the CT scan. He was of the opinion that it showed a bilateral pars defect at L5, but no spondylolisthesis nor any other abnormality.

21        Mr Williams accepted that the plaintiff had suffered a compensable injury. He considered the presence of a pars defect to be coincidental only to the onset of her lower back pain.[7]

[7]             PCB 38

22        Mr Williams treated the plaintiff intermittently over 2005, 2006 and 2007. In 2007, he referred the plaintiff to have an MRI scan which was taken on 31 January 2007. He considered that she was a candidate for a spinal fusion to ameliorate the effect of the pars defect at L5.

23        In a report dated 29 January 2007, and after he had inspected the MRI scan, Mr Williams was of the opinion that it was likely that the plaintiff could return to work as a sales assistant, kitchen hand or waitress.[8]

[8]             PCB 44

24        Mr Williams was concerned enough about the presence of the pars defect at L5 that he referred the plaintiff to Mr Carey, orthopaedic surgeon, for a second opinion.

25        Mr Carey first saw the plaintiff on 8 March 2007. On examination, he found diffuse tenderness over the plaintiff’s sacrum, left sacroiliac joint and iliac wing, and over the spinous process from S1 to the thoraco-lumbar region and lateral to it. He was unable to find the cause of the plaintiff’s lower back pain. Mr Carey was of the opinion that she should not have surgery and that whatever the pathology was that was causing her pain, it was not life or limb threatening.[9]

[9]             PCB 90-91

26        Mr Carey saw the plaintiff again on 16 June 2009 at the request of her solicitors. He obtained a history from her that she had pain five days a week and no symptoms at all two days per week. She was taking Nurofen and Panadol for pain relief. She was having no treatment at that time.

27        The plaintiff told Mr Carey that she was working part-time at a service station. She told him she had given up that employment because she was required to do a shift from 6.00 pm until midnight, which she found "too scary".

28        Mr Carey did not diagnose what the pathology was which he considered was the cause of her lower back pain. However, he was of the opinion that the plaintiff was suffering lower back pain without radiculopathy.

29        In terms of capacity for employment, Mr Carey was of the opinion that he would have no concern with the plaintiff doing any work within the limits of her discomfort.

30        Mr Carey had previously inspected the MRI scan. He disagreed with the radiologist that there was an L3-4 disc protrusion resulting in the mild canal stenosis. He said that if there was a disc protrusion, it was not consistent with his findings on clinical examination. He added that there would be disc resorption at L3-4 and he predicted a gradual resolution of her symptoms which he said was consistent with the history she gave that she was having two days without any pain at all.[10]

[10]           PCB 97-103

31        Mr Williams continued to see the plaintiff. In a report dated 25 June 2007, he recorded that the plaintiff was making significant gains with regard to her lower back pain from both a physical and psychological point of view. He remarked on her positive outlook and pursuit of volunteer work. He provided her with a Certificate of Capacity for modified duties for two hours, twice a week with restrictions.[11]

[11]           PCB 49 and 50

32        Mr Williams last saw the plaintiff on 6 October 2008. He expressed surprise and relief that the plaintiff had been able to find work at a service station. He made no plans to see her again.[12]

[12]           PCB 53

33        In addition to the treatment which I have summarised above, the plaintiff attended physiotherapy from about August 2005 intermittently to about April 2008.[13] The plaintiff also undertook Pilates from about May 2006 intermittently until about June 2009.[14]

[13]           PCB 56-74

[14]           PCB 75-85

34        There was an hiatus in the plaintiff's medical treatment until recently when she attended Dr Chan some time in 2009. He prescribed the plaintiff Comfarol Forte and Diclofenac for pain relief and as an anti-inflammatory agent.

Other Medical Evidence

35        The plaintiff was examined by Dr Murphy, consultant physician in rehabilitation medicine, on 24 June 2008 and 23 September 2009. He was of the opinion that the plaintiff had suffered an aggravation of spondylolisthesis of her lumbar spine and facet joint arthropathy.

36        Dr Murphy was of the opinion that she would continue to have ongoing back pain and disability arising from the injuries he diagnosed.

37        Dr Murphy obtained a history from the plaintiff that she obtained a job at a service station. The plaintiff told him that she gave that job away because it involved having to undertake night shifts and manual work which she could not tolerate. He was of the opinion that the plaintiff had a limited capacity to work between 12 to15 hours with significant restrictions.[15]

[15]           PCB 108A-108B

38        Mr Moran examined the plaintiff on 30 June 2008. He was of the opinion, that the CT scan and the MRI scan, together with her clinical picture, suggested that she had discogenic pathology with the pars defect of L5 and desiccation and disruption of the L3-4 disc. He was of the opinion that the plaintiff was vulnerable to further injury as a result of damage to the L3-4 disc.

39        Mr Moran was of the opinion that the plaintiff was not capable of returning to her pre-injury work. He considered she would struggle with sedentary work because of her intolerance with sitting for more than short periods of time. He added that it was unlikely she would find suitable employment given what he described as her ongoing and unresolved spinal injuries.[16]

[16]           PCB 111-112

40        Dr Miller, occupational health consultant, examined the plaintiff on 16 March 2006, 8 June 2006 and 15 January 2009. On the last occasion Dr Miller examined the plaintiff he obtained a history from her that she had improved since the last time he examined her. She also told him she was working at a service station, and that she was coping well with that work.

41        Dr Miller appears to have accepted that the plaintiff was suffering from some degree of disablement in her lower back. He was of the opinion that she could work so long as she avoided lifting in excess of 8 kilograms; avoided movements of her back beyond one-third of the normal range; avoided forceful pushing or pulling activities, and any prolonged static postures. If she kept to those restrictions she was be capable of working in excess of 15 hours per fortnight.

42        However, Dr Miller was of the opinion that the plaintiff had suffered a temporary aggravation of pre-existing changes in her lower back from which she had made a recovery. Presumably he was of the opinion that the persistent pain and disablement suffered by the plaintiff were constitutional.

43        Dr Miller was also of the opinion that the plaintiff would require analgesic and anti-inflammatory medication as required and a self-managed exercise program.[17]

[17]           DCB 27

44        Dr Fish, consultant occupational physician, examined the plaintiff on 4 December 2007. His opinion is of little worth in the context of this application because he undertook an impairment assessment. He does not appear to have made a diagnosis of the plaintiff's injury nor made any comment relevant to the issues raised by this application.[18]

[18]           DCB 29-32

Serious Injury

45        The preponderance of the medical evidence suggests that the plaintiff suffered the injury in the first incident which recurred when the second incident occurred.

46        The preponderance of the medical evidence suggests that the plaintiff did not suffer any significant pathological change in her lower back as a result of the incidents. The pars defect at L5 was a pre-existing defect. The medical examiners who are of the opinion that the plaintiff has suffered a compensable injury have essentially described the plaintiff as having suffered an insult to her lower back which has produced pain.

47        It is only Mr Moran who was of the opinion that there has been a significant aggravation of the pars defect accompanied by a disc injury. His opinion seems to be inconsistent with the opinions of all of the other medical examiners. Furthermore, his analysis of the radiology is inconsistent with that of Mr Carey who disagreed with the radiologist that there was an L3-4 disc protrusion resulting in mild canal stenosis.

48        Dr Murphy was of the opinion that the plaintiff did suffer an aggravation of the pars defect at L5, and also facet joint arthropathy.

49        Although there is a difference of opinion as to the pathological cause of the plaintiff's pain, I reject the submission made by Ms Manova that the evidence does not permit me to determine what injury the plaintiff suffered. What the evidence does establish is that the plaintiff did suffer an injury to her lower back, which was probably an aggravation of the pars defect at L5 and other structures of her lower back which has produced pain.

50        The plaintiff returned to work with a company known as APCO in August 2008. APCO conducted a service station business in Bendigo.

51        Ms Manova cross-examined the plaintiff regarding the hours she worked with APCO. The plaintiff was shown a schedule of her earnings between 7 August 2008 and 25 February 2009. It demonstrated that on a number of occasions the plaintiff worked in excess of 20 hours per week, and on some occasions in excess of 30 hours per week. For the week ending 7 January 2009, the plaintiff worked 37.5 hours.[19]

[19]           DCB 104

52        The plaintiff agreed that the schedule of earnings was consistent with her recollection of the hours she was capable of working.

53        The plaintiff's employment came to an unhappy end when she was charged with stealing from APCO. Mr Richards informed me that she stole $1128. She was charged with theft and dealt with in the Magistrates’ Court at Bendigo on 17 November 2009.

54        Ms Manova cross-examined the plaintiff regarding a number of other occasions, between 1987 and 2003, when she had been charged with crimes of dishonesty. The plaintiff admitted that she had been charged with previous offences for dishonesty.

55        The plaintiff did not inform any of the medical examiners who examined her that after she commenced employment with APCO, she was capable of working in excess of 20 hours per week and on some occasions in excess of 30 hours per week.

56        The plaintiff was examined by Dr Miller on 19 January 2009 and Mr Carey on 11 June 2009. She told Dr Miller that she was working 12 to15 hours per fortnight.[20] She told Mr Carey that she was working 15 hours a week.

[20]           PCB 25

57        The account of her working hours that she gave to Dr Miller and Mr Carey is plainly untrue. At the time when she saw each of them in 2009, she had worked in excess of 20 hours on fifteen occasions. Of those fifteen occasions she had worked in excess of 30 hours on five occasions.

58        I have no doubt that Dr Miller and Mr Carey were influenced, in the formulation of their opinions regarding the nature and extent of the plaintiff’s lower back injury, by the hours which the plaintiff said she was capable of working. The fact that the plaintiff did not tell the truth makes the opinions of both Dr Miller and Mr Carey regarding the plaintiff's capacity for work very unreliable.

59        The plaintiff admitted that she did not tell the truth to either Dr Miller or Mr Carey regarding the reasons why she stopped working for APCO. She did not tell them that she had been dismissed because she had stolen money from APCO. She said that she told that untruth because she was embarrassed by her conduct.

60        It is abundantly clear that until the plaintiff’s theft from APCO was detected, she was capable of working significant hours as a console operator and undertaking allied duties associated with that job.

61        Mr Damian Carew swore an affidavit on 8 October 2009. He was the owner/manager of the APCO service station where the plaintiff was employed. He said that the work which the plaintiff undertook did not require strenuous physical activity. She never made a complaint to him of suffering back pain. He had no reason to modify her duties because of any back pain that she may have had. He found the plaintiff to be an excellent employee who was happy to do extra shifts and who worked hard.[21]

[21]           DCB 75

62        I accept the evidence of Mr Carew, and I accept that the schedule of earnings demonstrates that the plaintiff worked the hours that she was able to obtain, and did so without any interference by her lower back injury.

63        The plaintiff gave evidence that she is now taking medication prescribed by Dr Chan because she is now experiencing significant lower back pain. She said that if she had not been dismissed from her employment with APCO, she would not have been able to continue working anyway because of the extent of her increasing lower back pain.

64        The plaintiff said that even during the period when she was employed with APCO, that she was experiencing persistent lower back pain which was so bad on three days a week, that she would measure its severity as being 10 out of 10, and on the other days 5 out of 10.

65        Furthermore, the plaintiff told Mr Carey when he last saw her that she was taking Nurofen and Panadol. It must be the case, therefore, that the medication the plaintiff now takes has been prescribed since Mr Carey last saw her, that is, over the last five months or so.

66        When the plaintiff was cross-examined by Ms Manova, she said that her lower back pain can be bad five days per week, and I took that to mean at the severe end of the scale.

67        The plaintiff's evidence regarding the occasions when her lower back pain is more severe is unreliable. Firstly, it is inconsistent with what she told recently Mr Carey. Secondly, her evidence went from having three bad days when examined by Mr Richards, to five bad days when cross-examined by Ms Manova.

68        The plaintiff said that when her pain was at the severe end of the scale she would have to lie down. However, she sought no medical treatment for that severe pain, and was quite obviously able to work apparently unhindered and consistently. She did not give any evidence that she was unable to attend to her work on any occasion between the time when she started working with APCO to the time when that employment came to an end.

69        No opinion was sought from Dr Chan to determine why he is prescribing the plaintiff medication at the present time, and whether it is for the plaintiff's injuries. It seems to me to be remarkable that the plaintiff now says that if she had not been dismissed that she would not be able to continue working because of persistent and often severe lower back pain. She did not say anything of that kind to Dr Miller or Mr Carey, and did not obtain a report from Dr Chan or even a medical certificate from him to verify that state of affairs.

70        It is not as if Dr Chan is inaccessible to the plaintiff. According to the plaintiff, he has been treating her over the last year for her lower back injury.

71        In her affidavits sworn 5 November 2008, the plaintiff said that she was capable of looking after her mother; doing the cooking; doing the cleaning; doing the house work, and otherwise engaging in a variety of social, domestic and recreational activities.

72        In her oral evidence, she confirmed that she is unable to engage in a wide variety of activities of a social, domestic and recreational kind. She added that she is unable to go out with her girlfriends, to the cinema and to dances. Her attempts at undertaking house work, such as vacuuming, are limited by lower back pain.

73        She said that most of those social, domestic and recreational pursuits she had before she suffered injury to her lower back have been adversely affected in a significant way.

74        The conclusion I have reached is that the plaintiff has not been entirely frank with Dr Miller or Mr Carey. Nor do I believe she has been entirely frank in her oral evidence.

75        I consider it extraordinary that if the plaintiff was able to work so effectively with APCO over an extensive period of time, that she really experienced three to five bad days per week, causing her to have to lie down to gain relief from severe symptoms of pain. That is in such stark contrast to the history she gave to Dr Miller and Mr Carey regarding the hours she was able to work.

76        I do not accept her evidence that she would have stopped working with APCO or reduced her hours if she had not been dismissed. It is clear from the evidence of Mr Carew that the plaintiff was a capable worker and someone who worked the hours which were made available to her.

77        The plaintiff's lack of frankness has undermined my confidence in her to such a degree that I am not prepared to accept much of her evidence without corroboration.

78        The plaintiff must have known that her credit would be attacked in this application. However, she has made no effort to obtain any evidence from her mother or friends to confirm the extent to which she is disabled in undertaking social, domestic and recreational pursuits. Nor has she obtained any evidence from Dr Chan. He is the only medical practitioner who can give an opinion on the present state of the plaintiff's lower back injury, whether it has deteriorated or not, and whether the plaintiff is fit for her work with APCO or not.

79        The picture painted by the evidence, which I accept, is that the plaintiff was obviously recovering from her lower back injury to the point where she obtained voluntary work in the hope that it would lead to paid employment. She subsequently recovered significantly, so much so that she obtained a level of physical fitness which enabled her to confidently obtain employment with APCO which she no doubt considered to be suitable in terms of duties and hours of work.

80        The fact that the plaintiff has undertaken physiotherapy and Pilates points to her need for some treatment. In the absence of any other evidence coming from the plaintiff, the mere fact that she is having that treatment is not indicative of consequences which meet the statutory test.

Conclusion

81        For the reasons set out above, I dismiss the plaintiff's Originating Motion.

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

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