Buultjens v State of Victoria
[2015] VCC 1816
•16 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01436
| JENNIFER THERESE BUULTJENS | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF HUMAN SERVICES) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 August 2015 | |
DATE OF JUDGMENT: | 16 December 2015 | |
CASE MAY BE CITED AS: | Buultjens v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1816 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – cervical spine – left shoulder – pain and suffering only
Legislation Cited: Accident Compensation Act (1985), s134AB
Cases Cited:AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dahl v Grice [1981] VR 513; Kruisselbrink v Nationwide Maintenance Services Pty Ltd [2010] VSC 260; Kite v George Patterson Pty Ltd & Anor [2008] VCC (1 September 2008); Bell Radiology (a firm) v Karen McGraw VSCA (unreported) 7 February 1996
Judgment: Leave granted to the plaintiff to issue proceedings at common law for pain and suffering damages on account of injury suffered on or about April 2001 in the course of her employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R N Morrow | Slater & Gordon |
| For the Defendant | Ms R L Kaye | Hall & Wilcox |
HIS 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 in the course of her employment with the defendant, the Department of Human Services, from approximately 2001 until 2012.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
3 There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”[1]
[1]Section 134AB(37) of the Act
4 The body functions relied upon in this application are:
(a) the lumbar spine;
(b) the cervical spine; and
(c) the left shoulder.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied upon medical reports and other material which was tendered in evidence. I have read all the tendered material.
Background
6 The plaintiff is aged fifty-five, being born in August 1960 in Sri Lanka. She came to Australia at the age of thirteen and completed her secondary education at Form 5. She separated from her husband in 1990 and since then has been financially independent. She has one son, born in 1989.
7 The plaintiff commenced employment with the defendant as a carer for clients with disabilities some time shortly after 1990. Originally, she performed duties in residential units all over Melbourne but at some time prior to 2001, she was working full time at Sunbury approximately 76 hours per fortnight. At this location, there were five aged clients who were all allocated one staff member during the day.
8 The plaintiff first suffered injury to her back on 24 February 2001 when a client weighing about 60 kilograms fell heavily onto the concrete floor, cutting his head, and was unable to get himself up. As the plaintiff tried to help him to his feet, she felt lower back pain which she alleges “travelled down into my left thigh”.[2] The plaintiff further swore: “I never recovered from that incident.”[3] Thereafter, she was off work for one to two weeks and put up with the pain as best she could. She returned to normal duties. She started taking Panadol. She continued to do night and dayshift with incapacitated clients.
[2]Exhibit A, affidavit sworn 8 November 2013, paragraph 9
[3]Exhibit A, affidavit sworn 8 November 2013, paragraph 9
9 The plaintiff suffered a further incident on 24 April 2001 when she went to get the same resident out of bed. She stated:
“The resident was slouched over the bed. As I tried to help him to get to his feet and toward the shower I felt an aggravation of pain in the same area where I had earlier suffered injury.”[4]
[4]Exhibit A, affidavit sworn 8 November 2013, paragraph 12
10 Thereafter, the plaintiff returned to her general practitioner, who referred her for physiotherapy treatment from one, Sharbil Wehbe, from approximately 1 May 2001. The plaintiff lodged a Claim for Compensation which was accepted. She remained off work for about three to four months.[5]
[5]Exhibit A, affidavit sworn 8 November 2013, paragraphs 13 and 14
11 When the plaintiff returned to work thereafter, she was moved to a different house. She swore:
“The work was less physical as the residents were younger and more independent.”
12 She was required to work on her own.[6]
[6]Exhibit A, affidavit sworn 8 November 2013, paragraph 15
13 At some point, she was “hit by a male client”.[7]
[7]Exhibit A, affidavit sworn 8 November 2013, paragraph 15
14 Apparently she was moved out of that house in early 2004. During the next nine years until 2012, she worked at a residential property in Moonee Ponds.[8]
[8]Exhibit A, affidavit sworn 8 November 2013, paragraph 15
15 The plaintiff asserts that despite ongoing treatment to her back in the meantime, it did not improve. She was referred for x-rays in July 2001 for her neck and lower back.[9]
[9]Exhibit A, affidavit sworn 8 November 2013, paragraph 16
16 As to a third incident, the plaintiff swore:
“Later in 2001 whilst I was already suffering lower back pain I went to pick something up at home and had a severe episode of pain in the same area. I went to the Royal Melbourne Hospital on that occasion and was given a pethidine injection. After a period of time the pain returned to the level it had been before the incident at home.”[10]
[10]Exhibit A, affidavit sworn 8 November 2013, paragraph 17
17 Thereafter, the plaintiff continued to work in that unit with younger and more independent residents. However, she swore her back pain continued and she continued to have physiotherapy treatment. On occasions, she attended her general practitioner.
18 In late 2007 and throughout 2008, the plaintiff alleges she was assaulted by an inmate on a number of occasions when her hair was pulled. These incidents took place in November 2007, February and October 2008. She swore that:
“On each occasion I suffered neck pain with some aggravation to my lower back injury.”[11]
[11]Exhibit A, affidavit sworn 8 November 2013, paragraph 20
19 From this time onward her medication included Celebrex and Panadeine Forte for pain in her lower back, neck and left shoulder.[12]
[12]Exhibit A, affidavit sworn 8 November 2013, paragraph 22
20 Thereafter, the plaintiff swore:
“After the incident in February 2008 I started to have significant difficulties with my recreational and domestic life. I visited Bali with my son and mother. Most of the time I remained in bed in the hotel while my son and mother travelled around and had fun.”[13]
[13]Exhibit A, affidavit sworn 8 November 2013, paragraph 23
21 In or about October 2009, the plaintiff asserted that her lower back symptoms and pain radiating down the left leg became worse “for no apparent reason”.[14]
[14]Exhibit A, affidavit sworn 8 November 2013, paragraph 26
22 Following an injury to her left knee in November 2011, she was referred to orthopaedic surgeon, Mr Brendan O’Brien, for treatment that included her lumbar spine.
23 On or about 30 September 2012, the plaintiff was involved in an incident where she was grappling with an uncooperative resident. She swore she suffered an aggravation of pain to her neck, left shoulder, lower back and left knee. Thereafter, she was off work from 30 September 2012 until 11 February 2013.
24 At the time she swore her first affidavit, she stated she was having physiotherapy at Essendon Physiotherapy on a monthly basis and was continuing to attend a gymnasium and do hydrotherapy at the Keilor pool.[15] She swore that she had back pain which was constant and radiated down her left thigh to her left foot. At that time, she said she was taking Panadeine Forte, three per day, Celebrex and Temazepam. She also stated she continued to see her general practitioner, Dr Waechter.[16]
[15]Exhibit A, affidavit sworn 8 November 2013, paragraph 29
[16]Exhibit A, affidavit sworn 8 November 2013, paragraph 31
25 Also, the plaintiff says that she has persevered at work –
“… only by reason of taking a lot of medication and having more and more restrictions placed upon my work activities and work environment.”[17]
[17]Exhibit A, affidavit sworn 8 November 2013, paragraph 36
26 When she swore her second affidavit on 21 July 2015, she stated she continued to suffer significant symptoms in her back, left shoulder and neck. She was working 33.5 hours per week but was helped by co-workers in terms of avoiding aggravating activities. She swore that she continued to take medications, being Celebrex and Voltaren and six Panadol tablets a day as a painkiller.[18]
[18]Exhibit A, affidavit sworn 8 November 2013, paragraph 10
The issues
27 The case was opened on the basis that the three injuries had occurred throughout the course of the plaintiff’s employment, commencing in February 2001, and were due to the nature of the employment with respect to the lifting and handling of intellectually and physically disabled adults, with episodes occurring specifically in February and April of 2001.
28 In addition, it was alleged that there were three incidents where the plaintiff had her hair grabbed and pulled by a particular adult female client, resulting in aggravation injuries whereupon “the upper part of her body was wrenched”.[19]
[19]Transcript (“T”) 2, Lines (“L”) 4-5
29 It was further contended that all these episodes were the subject of WorkCover claims which, in turn were admitted, and the plaintiff was in receipt of entitlements, including weekly payments and medical and like expenses. Nevertheless, she continued in her employment with the defendant.
30 It was submitted that there were four aspects of the claim which demonstrated a permanent serious impairment, viz:
(a)there has been an extremely long period of treatment in excess, now, of fourteen years, which included general practitioner attendances, specialist referral and allied health treatment, including physiotherapy, osteopathy and massage therapy;
(b)the plaintiff has ingested both painkilling and anti-inflammatory medication, including Panadeine Forte, throughout the period;
(c)the impairments have placed long-term restrictions on her employment duties;
(d)the radiology with respect to the three impairments discloses injuries which would explain the long-term consequences claimed.
31 The defendant, for its part, submits that the evidence does not disclose a general aggravation injury due to the nature of her employment throughout the period claimed. It is submitted that there are, in fact, seven specific incidents occurring on specific dates, such that the analysis required of the Court is along the lines set out in the case of AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz[20] as compared to the line of authority set out in the case of Grech v Orica Australia Pty Ltd & Anor.[21]
[20](2012) 34 VR 309
[21](2006) 14 VR 602
32 Further, it is submitted that the three impairments need to be analysed separately in terms of their respective consequences, and that has not been adequately addressed by the medical practitioners.
33 Thirdly, the defendant submits that such consequences, as exist at the date of hearing with respect to each of the three impairments, have not been adequately identified with respect to any or all of the seven incidents.
34 Fourthly, the defendant submits that the consequences relating to any impairment at the date of hearing do not meet the threshold for “serious injury” as defined by statute.
35 Fifthly, it is submitted the plaintiff has not adequately removed the consequences flowing from a left knee injury, which is not the subject of the present claim as per the analysis of Peak Engineering & Anor v McKenzie.[22]
[22][2014] VSCA 67
36 Finally, the defendant puts in issue the presence of a functional element in the plaintiff’s presentation which, it is submitted, has to be disentangled from the physical injuries.
The medical evidence
37 The plaintiff’s general practitioner, Dr Michael Waechter, has provided three reports dated 11 August 2008, 21 June 2011 and 5 December 2011.[23]
[23]Exhibit E
38 In the first report, Dr Waechter records the plaintiff injured her lower back on 24 February 2001, when lifting a client onto a wheelchair. He notes that there was a sharp pulling pain in the lower back and examination revealed tenderness at the L5-S1 region and reduced back movement. Dr Waechter also records that she subsequently developed interscapular back pain and neck pain, with x-ray examination of the neck revealing degeneration at the C5-6 disc and, similarly, the lower spine revealed an L4-5 disc bulge.[24]
[24]Plaintiff’s Court Book (“PCB”) 49
39 There is then a gap in the clinical progress until 14 June 2007, whereupon Dr Waechter records the plaintiff reporting a month history of left shoulder pain and restricted movements. An ultrasound examination had revealed subacromial bursal impingement and thickening. Dr Waechter then records a further incident on 24 February 2008, when the plaintiff was grabbed by her hair and pulled to the ground by an intellectually disabled client. She experienced further aggravation of neck pain. He then records that, on 19 June 2008, she reported pain and numbness in the lower neck and right arm.[25] Accordingly, as at August 2008, Dr Waechter opined that the plaintiff had chronic neck and back pain due to disc degeneration, and left shoulder pain due to impingement at the left acromioclavicular joint. There was, consequently, impairment in the back, neck and left shoulder movement and strength.[26]
[25]PCB 49
[26]PCB 49
40 Dr Waechter then recorded the plaintiff had been placed on light work duties and was taking Panadeine Forte, analgesics; Celebrex anti-inflammatory; Valium, muscle relaxant; Nexium, anti-ulcer drug and Zoloft, an antidepressant. She was currently taking Panamax and Celebrex. In the past, she had had regular physiotherapy.[27]
[27]PCB 50
41 Dr Waechter’s prognosis, at that stage, was that the plaintiff would have:
“… ongoing back and neck pain. This may fluctuate in severity. It is due to disc damage that is not surgically treatable. She has managed to perform light work duties for some seven years since her original injury. I expect that she will be able to maintain this level of functioning with existing support treatments including physiotherapy and massage. She has a left acromioclavicular injury that might gradually worsen over time and eventually require arthroscopic treatment. She has reported ongoing low mood and drinks alcohol occasionally to alleviate her depression. This will need further attention and support.”[28]
[28]PCB 50
42 In Dr Waechter’s second report dated 21 June 2011, he repeats the clinical history already outlined and refers to a further incident on 15 November 2009, when the plaintiff’s left knee gave way when she was reaching over to help a client do up his seatbelt. He recorded:
“There was a sharp pain in the patellar tendon region and the knee subsequently became swollen. She was referred to Mr Brendam (sic) O’Brien, orthopaedic surgeon. MRI examination revealed minor synovitis around the anterior cruciate ligament with some chondromalacia behind the femoral condyle and some subtle degenerative changes.”[29]
[29]PCB 52
43 Apparently, at that time, an MRI examination of the lumbar spine had shown multilevel lumbar spondylosis without nerve root impingement or compression and there was lumbar disc wear and tear at the L4-5 and L5-S1 levels.[30] This was not accompanied by any suggestion of a new injury.
[30]PCB 52
44 At that point in time, Dr Waechter considered the plaintiff had:
“… ongoing low back, neck, left knee and shoulder pain as described above. The injuries are degenerative and are chronic in nature. The symptoms fluctuate in intensity and are aggravated by occasional workplace incidents that can occur occasionally as shown in Jennifer’s history to date.”[31]
[31]PCB 52
45 Dr Waechter considered that the injuries had stabilised at that point and the shoulder condition had improved. Further, he thought the left knee problem may eventually deteriorate.
46 Finally, Dr Waechter noted that an occupational medicine specialist, Dr C Baker, had performed a worksite assessment on 11 May 2010 and determined that the plaintiff’s workplace was suitable and her duties appropriate despite her injuries. He agreed with the assessment. He considered the plaintiff required ongoing treatment with analgesics, and occasional treatment with anti-inflammatory medication. Dr Waechter also considered the plaintiff required occasional treatment of the aggravations by her osteopath and “… would benefit from an active exercise program to strengthen her leg and postural muscles and assist with weight loss”[32].
[32]PCB 52
47 In his final report dated 5 December 2011, Dr Waechter repeated much of the clinical information referred to above. In addition, he noted that in October 2009, the plaintiff reported worsening lower back pain and left-sided sciatica, but with no mention of specific further injury. She developed urinary incontinence, but the symptoms were attributed to stress incontinence rather than spinal cord compression.[33] Dr Waechter further noted that Mr Brendan O’Brien had recommended ongoing multi-modality conservative care and work restrictions with regard to the lumbar area. He noted the plaintiff had managed to continue with her work on these restrictions to the present date.[34]
[33]PCB 53
[34]PCB 54
48 With respect to work relationship, Dr Waechter noted:
“The clients have had a range of physical and intellectual disabilities. She has had a number of workplace injuries and physical assaults as described above. These have contributed to or aggravated degenerative conditions affecting, her left knee, shoulders, neck and lower back.”[35]
[35]PCB 54
49 Dr Waechter considered that the injuries had aggravated and increased the extent of degenerative disease affecting the plaintiff’s back, neck, left knee and shoulder. Further, he thought that she was currently capable of performing her pre-injury duties, but then commented:
“She remains restricted to light duties with back restrictions. This suits her current positions as clients are able bodied and there is a no lift policy … The current work is suitable. The restrictions do not materially limit her capacity to perform pre-injury work duties in her current workplace.”[36]
[36]PCB 54
50 Dr Waechter considered the plaintiff required ongoing treatment with analgesics (Panadeine Forte and Tramadol), sleeping tablet, Temaze, and Celebrex, an anti-inflammatory. He considered she needed ongoing physical therapy (massage and osteopathy) to maintain functioning and preserve psychological health. Dr Waechter considered she may require later surgical treatment of her left knee and left shoulder condition, but she was not keen to pursue those options at present.[37]
[37]PCB 55
51 The defendant submits that, on the face of these reports, Dr Waechter has not separated out the consequences with respect to the three impairments relied upon in this claim. I accept this submission.
52 However, the plaintiff has also tendered in evidence Dr Waechter’s clinical notes between February 2002 and 30 June 2014.[38] Relevantly, they reveal as follows:
[38]Exhibit O
(a) 22 August 2002, history:
“Low back pain 1w.bathing client. low tub.
Neck L shoulder pain.
WC 15.8- to 15.0902 light duties
Pilates program
Reduce Endep to 10mgm nocte.”[39]
[39]PCB 113
(b) 26 September 2002:
“low back pain to L buttock 2w. Interscapular pain, occ neck
stiffness.
Tender L5
WC 1509-151002.
some epigastric pain. Add Zantac. If persists may need to stop
celebrex.”[40]
[40]PCB 113
(c) 15 October 2002:
“Wanting to move to diff, residential house. Client’s aggressive.
Psychiatric disorders – aggressive.
Tender L5, flex 80.
WC 15-10-15-1102.
Needs to change house.
c/o depressed. off Endep.
For Zoloft.”[41]
[41]PCB 112
(d) 28 November 2002:
“WC 15-11-145-12-12-02.
light duties.
has changer (sic) residential houses [to Moonee Ponds]
sore L knee 1w, sl tender lat knee jt.
Colat ligs ok, ACL ok, meniscus ok.
? colat lig strain, rest.”[42]
[42]PCB 112
(e) 12 December 2002:
“WC 15-12-15-01-03 light duties.
has been placed in light work house.
some liver impairment.
stopped smoking 2m ago.”[43]
[43]PCB 112
(f) 14 January 2003:
“some low backpain 1w, no sciatica
Shoulders ok neck ok.
… tender L5, some para Lx spasm.
WC 15-1-15-02-03.”[44]
[44]PCB 112
(g) 11 February 2003:
“still has low back pain to buttocks, sciatica.
WC 15-2-15-3-03
light duties.
neck pain improved.”[45]
[45]PCB 111
(h) 13 March 2003:
“WC 15-3-15-4-03
still has low back pain. Buttocks. Neck ok
scripts
some heartburn – zantac.”[46]
[46]PCB 111
(i) 14 April 2003:
“L sciatica 2w
sore neck, l shoulder pain.
some jarring on bus, at Bali
WC 15-4-15-5-03
light duties
scripts.”[47]
[47]PCB 111
(j) 15 May 2003:
“low back pain, L buttock to knee
neck ok
shoulders ok.
WC 15-5-15-6-03
light duties
Script Written- Nexium (Tablets) 20 mg
reflux.”[48]
[48]PCB 111
(k) 16 June 2003:
“Consultation Not Coded
WC 15-6-15-7-03
light duties … .”[49]
[49]PCB 110 – 111
(l) 15 July 2003:
“low back pain
…
WC 15-7-15-8-03 light duties
Script Written – Voltaren (Suppositories) 100 mg
… .”[50]
[50]PCB 110
(m) 14 August 2003:
“pain;back chronic
Continues on alternative duties 16/08 – 15/09/03.”[51]
[51]PCB 110
(n) 15 October 2003:
“WC 15-10-14-11-03
chronic disc injury
able to do light duties.
letter for massage therapy.
Script Written – Pariet (Tablets) 20 mg.”[52]
[52]PCB 110
(o) 20 November 2003:
“WC 15-11-14-12-03
light work only
some R tennis elbow
… .”[53]
[53]PCB 110
(p) 15 December 2003:
“Pain;back chronic
Continues to carry out current alternative duties.
MC: 15/12/03 – 14/01/04.”[54]
[54]PCB 110
(q) 15 January 2004:
“WC 14-1-13-2-04 light work
sore R elbow, epicondylitis both sides
suggest physio, brace.
Some L sciatica.
Script Written – Celebrex (Capsules) 200 mg
referral for massage, letter.”[55]
[55]PCB 109
(r) 13 February 2004:
“LBP spasm
R lateral epicondylitis.WC 13-2-11-03-04.
…
Script Written – Celebrex (Capsules) 200 mg
… .”[56]
[56]PCB 109
(s) 16 March 2004:
“WC 12-3-10-4-04
LBP, R elbow pain
light work only
…”[57]
[57]PCB 109
(t) 15 April 2004:
“Script Written – Celebrex (Capsules) 200 mg
WC 11-4-9-5-04 light work only
LBP, neck pain
referral massage therapy.”[58]
[58]PCB 109
(u) 11 May 2004:
“sore neck last 5d, no arm pain, haches, LBP, L sciatica
WC 10-5-9-6-04
light work
physio, massage.”[59]
[59]PCB 109
(v) 16 June 2004:
“gastric bypass 18-5-04.
12d hospital.
WC 16-6-14-7-04.
LBP
light work only
lost 10kg
Script Written – Voltaren Emulgel 1 % 20 g.”[60]
[60]PCB 108
(w) 14 July 2004:
“WC 14-7-12-8-04
some pain L buttock
now 90 kg.
… .”[61]
[61]PCB 108
(x) 12 August 2004:
“WC 13-8-11-9-04.light work, direct care worker
Script Written – Celebrex (Capsules) 100 mg
still loosing (sic) weight 92 kg.”[62]
[62]PCB 108
(y) 8 October 2004:
“WC 9-10-7-11-04.
light work
some leg cramps
Script Written – Quinate (Tablets) 300 mg
Note re physio.”[63]
[63]PCB 108
(z) 15 November 2004:
“sore neck, shoulders, LBP
WC 8-11-6-12-04.
…
tender L5 region.
Script Written – Somac Tablets 40 mg
Script Written – Celebrex (Capsules) 200 mg
… .”[64]
(sic).
[64]PCB 107-8
53 It would appear, thus far, that the plaintiff has corroboration for chronic back pain from the commencement of the clinical notes on 27 August 2002, and continuing. There appears to be no recovery in the meantime which would, in turn, corroborate the plaintiff’s assertion. There are references to findings of spasm and sciatica, consistent with the chronic low-back injury. There does not seem to be the same support for the cervical spine or the left shoulder. Indeed, for example on 15 May 2003, the history is:
“neck ok
Shoulders ok”[65]
but there is a complaint of “low back pain, L buttock to knee”.[66]
[65]PCB 111
[66]PCB 111
54 From 9 December 2004, there are ongoing monthly consultations varying in terms of complaints with respect to the neck and left shoulder, but consistently complaining of low-back pain. There are also the prescriptions of Celebrex tablets and the pattern of consistent chronic back pain with intermittent neck and shoulder pain, and ongoing consistent WorkCover Certificates for light duties up until the last entry on 30 June 2014. However, it is worth noting that the last attendance for a consultation was, apparently, on 6 March 2013, where it is recorded:
“problems with work
wants to get off restrictions.
Document Sent – Vic Workcover Certificate rtw 7-3-13 normal duties.
re left knee injury.”[67]
[67]PCB 83
55 The clinical entry prior to this occasion was 28 February 2013, where it is recorded:
“… Document Sent – Vic Workcover Certificate 28-2-27-3-13 lighter work, avoid bending.
Script Written – Panadeine Forte (Tablets)
Script Written – Celebrex (Capsules) 100 mg – Rpts:3.”
… .”[68]
[68]PCB 83
56 The downloaded clinical notes are dated 13 July 2015, with no apparent explanation as to what has occurred in the preceding twelve months. The plaintiff, on the other hand, has sworn in her second affidavit, dated 21 July 2015:
“I continue to take medication being Celebrex and or Voltaren as an anti-inflammatory, and 6 Panadol tablets a day as a painkiller. I used to take Panadiene in (sic) Forte but I had to stop taking that after surgery I had for ovarian cancer.”[69]
[69]Paragraph 10, PCB 21
57 The twelve-month gap in the clinical notes is perplexing. It would appear, however, that up until February 2013, the clinical notes would corroborate the plaintiff’s claim that she has suffered chronic low-back pain since her original injuries in February and March 2001, from which she never really recovered. The consequences have included the need for regular medication, WorkCover Certificates for light duties and intermittent treatment from allied health professionals. The picture emerging is not so clear for the cervical spine or the shoulder. I do not consider that the same corroboration exists with respect to those injuries. Although it is clear that, from time to time, specific medication has been prescribed for flare-ups with respect to those injuries, the prescription of painkillers and anti-inflammatories would still be referrable to the chronic back pain, if I accept the plaintiff’s evidence in this regard.
58 The plaintiff also relies on her treating physiotherapist, Ms Sharbil Wehbe, who has furnished a report dated 28 August 2008.[70] She records the first attendance on 1 May 2001, when the plaintiff complained of “burning” lower back pain which she had sustained while trying to lift a client from the floor and assist the client back to bed on 24 April 2001.[71] Ms Wehbe was of the opinion that the plaintiff had sustained muscular and ligament damage within her lumbar spine and that, over the years, despite undertaking regular physiotherapy, massage therapy and completing gymnasium programs, her condition had not recovered and her pain had become chronic in nature.[72] Further, she recites that:
“Since April 24, 2001 Ms Boultjens (sic) has complained of lower back pain while completing her household duties, especially cleaning and lifting; with prolonged standing and walking and; forward bending. Her pain fluctuates in intensity.”[73]
[70]Exhibit J
[71]PCB 61
[72]PCB 61
[73]PCB 61
59 On examination:
“… she remains limited through her flexion and extension range. There is spasm through her paravertebral muscles, psoas, gluteal muscles and piriformis. She remains tender through L2-5.”[74]
[74]PCB 61
60 Further, Ms Wehbe records:
“Jennifer has received extensive treatment over the years to improve the hypo mobility of her spine and provide strength [in] her spine. She attends massage therapy on a regular basis to maintain the satisfactory muscle length by releasing muscle spasms. Physiotherapy treatment is only sort (sic) by Jennifer at times when she feels that massage therapy is unable to settle her pain and discomfort to a level where she can continue with her normal ADLs and work. Physiotherapy treatment consists of manipulation; trigger point therapy; deep tissue massage; mobilisation or; electrotherapy depending on what is deemed best at the time. Physiotherapy treatment is ceased when Ms Boultjens (sic) believes she is able to manage her pain with her home exercise program.”[75]
[75]PCB 61-2
61 Ms Wehbe’s prognosis was as follows:
“Given the nature of Jennifer’s injury and work I believe she will continue to have ongoing recurrence of her pain in the future. This has been shown to the be case over the years despite her compliance to [continue?] with her home exercise program. Unfortunately given the chronic nature of her pain, lower back pain is something that Jennifer will have to continue to manage in the future. I believe Jennifer genuinely tries to manage her pain independently through her home exercise program but unfortunately this is not always enough and she will require assistance usually through massage therapy and at times physiotherapy.”[76]
[76]PCB 62
62 Finally, as to the need for ongoing physiotherapy, Ms Wehbe considers the plaintiff does not require regular physiotherapy, but it will be required at times of recurrence of her pain so as to reduce pain intensity and allow her to maintain employment and her ADLs.[77]
[77]PCB 62
63 Dr Waechter referred the plaintiff to orthopaedic surgeon, Mr Brendan O’Brien, who saw her on 2 March 2010.[78] He recorded, then:
“She initially hurt her lumbar and posterior cervical region in 2001. More recently in November … . She felt her left leg give way at the knee.”[79]
[78]Exhibit G
[79]PCB 57
64 On, or about, 25 November 2009, she thought there was decreased sensation on passing her urine and underwent an MRI scan of the lumbar spine:
“… which was reported to her as not showing any significant nerve root compression. Since then she has developed increasing pain in the posterior lumbar region. She has also had problems in and around the left shoulder. She has been given one recent intra-articular cortisone injection.”[80]
[80]PCB 57
65 With respect to the lumbar spine:
“She has trouble standing more than one hour and feels she can’t walk more than 45 minutes. She has tightness in the lower lumbar region.”[81]
[81]PCB 57
66 Clinical examination showed decreased sensation to pinprick appreciation in a left L5 and S1 dermatomal distribution. At that point, he considered the plaintiff should have an MRI scan of the lumbar region and left knee, and he would report later.[82]
[82]PCB 57
67 On 29 June 2010, Mr O’Brien reported back to Dr Waechter on the results of the MRI scan of the left knee and the lumbar spine. In the lumbar spine, he considered there was:
“… multilevel lumbar spondylosis without any nerve root impingement or compression. There is two level lumbar disc wear and tear at L4/5 and L5/S1.”[83]
[83]PCB 58
68 With respect to the lumbar spine, he considered the plaintiff:
“… should continue with multimodality conservative care in regards to the lumbar area. This would involve all the usual precautions as far as lifting, twisting, straining or bending. I have talked to her about this at length today.
I have suggested she continue with intermittent Celebrex and Panadeine Forte.”[84]
[84]PCB 58
69 With respect to the left knee, the MRI scan revealed:
“… minor synovitis around the anterior cruciate ligament with some chondromalacia behind the femoral condyle. There are some subtle degenerative changes.”[85]
[85]PCB 58
70 Mr O’Brien considered that she would benefit from seeing a knee specialist.
71 In January 2010, the general practitioner referred the plaintiff to orthopaedic surgeon, Mr Anthony Bonomo, with respect to her left shoulder problem.[86] He took a history as follows:
“She describes an injury at work almost ten years ago when she injured her neck and lower back. She feels her shoulder was also injured at the time although the major problems at that stage were with her back. With respect to the shoulder she describes difficulty performing elevation and rotary type movements. In particular she had difficulty reaching her hair and doing up her bra. She is also unable to sleep on the left side.
Examination revealed signs consistent with rotator cuff impingement.”[87]
[86]Exhibit H
[87]PCB 59
72 At this stage, he recommended plain x-rays.[88]
[88]PCB 59
73 On 15 February 2010, Mr Bonomo recorded that he had injected the shoulder with steroid, and if the symptoms cannot be resolved, arthroscopic subacromial decompression surgery may need to be considered.[89] No such surgery has been performed, or any further injections.
[89]PCB 60
74 The plaintiff was also referred to orthopaedic surgeon, Ms Anita Boecksteiner, who reported on 9 May 2011.[90] She reported that Mr Brendan O’Brien had made a diagnosis of L5-S1 spondylosis with some referred pain down her leg and into her groin region. Ms Boecksteiner was asked to comment on the pain “that goes past her knee”.[91] Apparently, examination of the knee:
“… revealed mild lateral tenderness and an MRI basically only showed very, very mild synovitis and no other problem.
I think that her main problem that she is describing where she has pain down the lateral aspect of her leg radiating from the buttock region and occasionally going to the groin is referred pain from her lower spine.
I agree with Brendon (sic) O’Brien that she requires ongoing long term maintenance therapy which is conservative in nature and this involves torso strengthening exercises and sensible preventative measures such as correct bending techniques, minimal lifting, minimal strain on her back.
She has been following these restrictions at work, but needs maintenance physiotherapy to her torso and I am writing to you to request that this continues.”[92]
[90]Exhibit F
[91]PCB 56
[92]PCB 56
Medico-legal opinions
75 The plaintiff was examined by orthopaedic surgeon, Mr John F O’Brien, on 26 August 2013, at the request of her solicitors.[93] He took the following history:
“In early 2001, Ms Buultjens stated that she was looking after a resident suffering from Down’s Syndrome who was apparently going to the toilet when he fell. Ms Buultjens stated that she physically helped the resident and she experienced sudden, quite severe, low back pain … Initially Ms Buultjens stated she continued to work, but the pain became quite severe, and thus she took one week of her annual leave off work.”[94]
[93]Exhibit D
[94]PCB 43
76 Thereafter, the plaintiff told Mr O’Brien she returned to normal duties:
“… still aware of persistent low back pain. The patient in fact indicated that only a matter of a few weeks after the initial incident, she was helping a resident out of bed, when again she experienced a significant exacerbation of low back pain. The patient stated she did see her local doctor and it was following this that she underwent some physiotherapy treatment. This, the patient stated, was not of significant benefit as she continued to experience constant low back pain, nevertheless the patient reported undergoing her normal duties.
Some months later in 2001, [the] client stated she bent over suddenly and experienced an acute episode of severe low back pain. Indeed, the patient stated the pain was so severe that she was taken to the Emergency Department at the Royal Melbourne Hospital where she was apparently given some painkilling injections. Ms Buultjens stated the pain was so severe that [she] was virtually unable to move and was again referred for physiotherapy treatment. The patient stated that this in fact did result in some slow improvement in the severity of back pain, and as a result of this, the patient stated that after some two months she was able to return to work which she did report involved some modified duties in different residential homes. Ms Buultjens however stated that she in fact continued to experience constant back pain, as a result of which she continued modified duties.”[95]
[95]PCB 43-4
77 Mr O’Brien thereafter reports on the subsequent incidents of neck pain, left shoulder pain and exacerbations of low-back pain, together with a left knee condition. The plaintiff recited that her treatment at that time consisted predominantly of her medication, although she had recently had some intermittent physiotherapy. His physical examination of the three injuries was quite thorough. With respect to the left shoulder, he noted:
“The patient reported some tenderness generalized around the region of the left shoulder. The power of the shoulder appeared quite good. Indeed active movements against resistance did not appear to precipitate any major shoulder pain.”[96]
[96]PCB 45-6
78 With respect to the cervical spine, there was some restriction of movement and:
“… some reaction to palpation over the posterior aspect of the cervical spine.”[97]
[97]PCB 45
79 With respect to the left knee, Mr O’Brien noted:
“There was no effusion within the left knee. Flexion was from 0-90° which the patient reported was associated with significant pain basically all around the left knee. There was some tenderness associated with both sides of the left patella. The left knee itself was stable.”[98]
[98]PCB 46
80 With respect to her lumbar spine, Mr O’Brien noted:
“Lumbar flexion was 60°, with 20° of extension, some 20° of lateral flexion, most movements accompanied by the complaint of some back pain. There was some rather generalized tenderness described around the lumbosacral area.”[99]
[99]PCB 46
81 In his ‘Opinion’ section, Mr O’Brien reports the plaintiff now presenting with a number of symptomatic areas which had allegedly been precipitated by multiple work-related incidents in the course of her employment. He considered the cervical problem was –
“… symptomatic cervical spondylosis with clinical evidence of some mild left shoulder rotator cuff tendinopathy.”[100]
[100]PCB 46
82 Mr O’Brien considered, in the lumbar spine, there was chronic pain relating to –
“… symptomatic lumbar spondylosis noted on the MRI.”[101]
[101]PCB 46
83 With respect to the left knee, Mr O’Brien thought the plaintiff had –
“… chronic, non-specific left knee pain.”[102]
[102]PCB 46
84 Mr O’Brien considered that the defined, symptomatic areas of pathology would be –
“… considered work-related.”[103]
[103]PCB 47
85 In conclusion, Mr O’Brien stated:
“I would conclude that there are now multiple areas of chronic pain which I would suggest will not specifically respond to conservative treatment. Under these circumstances, I would consider conservative treatment will be directed towards pain management. With this the patient will benefit from ongoing physical treatment such as physiotherapy and the use of regular analgesic and anti-inflammatory medication. I would consider there is no indication for any specific investigations currently. Nor is there any indication for invasive treatment.
The prognosis remains poor as this patient has now well-established multiple areas of chronic pain as documented.”[104]
[104]PCB 47
86 At that point, Mr O’Brien considered the plaintiff would not be capable of totally unrestricted employment, but would be able to continue with her modified duties. In his opinion, the plaintiff was definitely restricted in relationship to her general, social, domestic and recreational activities, and he believed that this would be a permanent situation.[105]
[105]PCB 47
87 I accept the defendant’s submission that there has been no attempt to separate the individual consequences of the three impairments claimed in this matter. Nonetheless, I consider Mr O’Brien’s opinion to be corroborative of the plaintiff suffering, at the very least, chronic ongoing lumbar back pain with respect to symptomatic lumbar spondylosis, which had its genesis in 2001, and from which there has been no substantial recovery.
88 The plaintiff was seen by occupational physician, Dr Helen Sutcliffe, on 14 August 2014.[106] Dr Sutcliffe recorded a history of two incidents in February and March 2001 and, thereafter, noted the plaintiff suffered from continuation of pain, with increased pain in the low back to such an extent that she could not straighten up. She continued for three to four months and at that stage, she was moved to another house and this prevented further difficulties for her.[107]
[106]Exhibit C
[107]PCB 31-2
89 Thereafter, in the new house, she was subjected to an aggressive client who pulled her hair, resulting in the onset of “further neck pain” and “further back pain”.[108] Dr Sutcliffe also noted a left knee injury suffered in the course of her employment. Currently, the plaintiff was experiencing constant pain in the left knee, low back, the posterior aspect of the left leg to the ankle, the left shoulder, left side of the neck and also the right side of the neck.[109]
[108]PCB 32
[109]PCB 33
90 In terms of the pain with respect to the various areas, Dr Sutcliffe reported:
“… an intensity of six to seven in the left shoulder and low back at (sic) an intensity of five in the left knee and left leg.”[110]
[110]PCB 33
91 Further, the plaintiff experienced waking pain in the low back and in the neck. Dr Sutcliffe considered the plaintiff had sustained multiple injuries during the course of her employment, consisting of aggravation of spondylitic change in the lower lumbar area, particularly at L5-S1, and the onset of impingement syndrome in the left shoulder.[111] With respect to the lumbar area, Dr Sutcliffe considered the plaintiff also suffered symptoms –
“… consistent with nerve root involvement with minor change in power in the left foot movement and with a description of radicular pain in the lateral left leg.”[112]
[111]PCB 38-9
[112]PCB 40
92 With respect to the left shoulder, Dr Sutcliffe considered there was a –
“…restriction of a range of movement … and moderate pain associated with this condition.”[113]
[113]PCB 40
93 Dr Sutcliffe considered the plaintiff would be able to continue in her present employment:
“… where the clients are easier to care for, do not require heavy lifting or supporting, and there is no aggression directed towards her. I believe she can continue in these activities into the foreseeable future.”[114]
[114]PCB 42
The Defendant’s medico-legal evidence tendered by the Plaintiff
94 The plaintiff was examined by orthopaedic surgeon, Mr Gerald Moran, on behalf of the defendant on 1 September 2009 and he reported on 23 November 2009.[115] He took a history of the two incidents in 2001 and the incident at home later in 2001, to the following effect:
“… Ms Buultjens went to pick something up at home when she experienced low back pain and she was unable to straighten up. Ms Buultjens saw a locum and it was recommended she attend the Royal Melbourne Hospital. Ms Buultjens attended the Casualty Department at the Royal Melbourne Hospital and was given a Pethidine injection.
Ms Buultjens was off work for two or three months and then returned to work on restricted duties. Ever since this episode in late 2001 Ms Buultjens has remained on restricted duties with no lifting and no bending. Ms Buultjens did not have time off work from 2001 up until the incident 23.02.08. Ms Buultjens worked in this period of time with neck pain, low back pain, left leg pain and left shoulder pain.”[116]
[115]Exhibit N
[116]PCB 78
95 Having obtained the history of the three incidents in 2001, as well as the subsequent incidents, Mr Moran’s opinion on liability was as follows:
“Ms Buultjens in an incident 23.02.08 aggravated C6-7 spondylosis, aggravated L5-S1 disc degeneration and lumbar spondylosis, aggravated sub-acromial bursitis of her left shoulder and sustained a soft tissue right shoulder injury. These diagnoses were made after viewing the reports of Ms Buultjens’ X rays 05.03.01, report of her Ultrasound left shoulder 13.07.07 and after viewing her X rays lumbo-sacral spine 06.07.01.”[117]
[117]PCB 80
96 Although not specifically asked by the defendant on this occasion, it would appear to me that, having implicated and relied upon the x-rays of 5 March and 6 July 2001, it would appear that there is some corroboration from these two investigations for the assertion that the plaintiff’s back injury had its genesis in early 2001 and that the circumstances of bending over at home in late-2001 were such that the conclusion that the back was in a vulnerable position immediately before that incident could justify the conclusion that the plaintiff had not recovered, at that stage, from the earlier work-related injuries or, indeed, perhaps thereafter.[118]
[118]See Dahl v Grice [1981] VR 513
97 The plaintiff also tendered the report to the defendant of occupational physician, Dr Chris Baker, 12 May 2010.[119] He had been retained by the defendant’s insurer to undertake a worksite inspection of alternative duties which would be “… appropriate and reasonable duties to assist in her rehabilitation”.[120] He did not conduct any independent medical examination, but he had her doctor’s certificate, which noted she was suffering with –
“… back, neck, shoulder pain and left knee pain and was working on restrictions of minimal bending and no lifting of more than 5kg, and minimal driving and rest breaks.”[121]
[119]Exhibit M
[120]PCB 75
[121]PCB 75
98 Dr Baker noted there was a no-lift policy, and if an individual fell, then the plaintiff would not be expected to lift that client, but would summon help by contacting the Ambulance Service.[122] The plaintiff advised Dr Baker that she was suffering with discal problems resulting in lower back pain and referred pain into the left leg. She also related left shoulder problems and her left knee condition as a result of her knee collapsing about four months earlier.[123] Dr Baker considered, at that time, that the plaintiff should be told that no further certificates were required, but it would be accepted that she cannot undertake unrestrained tasks.[124]
[122]PCB 75
[123]PCB 76
[124]PCB 76
99 Finally, the plaintiff tendered the report to the defendant of general surgeon, Mr Paul Steedman, dated 12 January 2012.[125] Mr Steedman took a history from the plaintiff that:
“… the work involved quite an amount of heavy lifting of patients. She had one main accident which was on 24 April 2001, i.e. more than ten years ago. She injured her neck and back whilst lifting a patient. At that time she did not have any time off work. She saw her GP and had physiotherapy. She took her own sick leave.
One week later she had another injury with the same patient in which she aggravated her back problem. Four months later the pains in her neck and back became much worse and she had to be off work for at least four months. She was then able to go back to work but in another house.”[126]
[125]Exhibit L
[126]PCB 69
100 At the time of Mr Steedman’s report, the patient was still being prescribed Celebrex and Panadeine Forte and had noted that she had had physiotherapy once per week for at least two years. Her present history was as follows:
“She says that now her neck and back are still not good. Her neckache is constant and it radiates up the left side of her face and down towards her left shoulder. Her lower backache is constant with radiation down the back of the leg as sciatica.”[127]
[127]PCB 70
101 It would appear that the clinical examination revealed that the lower back was more problematical than the other two areas:
“Examination of her neck revealed slight stiffness. Movements of the neck were limited by 10 per cent of their expected normal range by apparent pain and stiffness.
Examination of her left shoulder joint revealed slight deltoid muscle wasting and abduction was limited by 15 degrees.
Examination of her lower back revealed stiffness. All movements of the back were limited by 15 per cent of their expected normal range by apparent pain and stiffness and flexion was the most limited to 35 degrees. Straight leg raising was limited to 30 degrees on the left and 45 degrees on the right actively and 30 degrees on the left and 60 degrees on the right passively. Power of active straight leg raising was limited on both sides quite markedly, left worse than right. Lower limb reflexes were sluggish.”[128]
[128]PCB 70
102 Mr Steedman commented that MRI scans of the plaintiff’s spine of indeterminate date revealed:
“… significant degenerative changes.”[129]
[129]PCB 70
103 It was his opinion the plaintiff had suffered recurrent work-related problems with her neck, back and left shoulder, and he would regard all these as having a work-related impairment of 15 per cent as far as the neck was concerned; 15 per cent as far as the left shoulder was concerned and 15 per cent with respect to her back.[130]
[130]PCB 71
104 With respect to the facts in issue in this matter, it would appear that on the history taken by Mr Steedman, the “main accident” being on 24 April 2001 was, in fact, the second incident, the first being in February 2001. It would appear that the second incident may be the more prominent, as attested to by Ms Wehbe,[131] referred to earlier.
[131]Exhibit J
The Defendant’s medico-legal evidence
105 The defendant tendered two reports from consultant physiotherapist, Mr Neil Sherburn, dated 7 December 2009 and 27 January 2010.[132] The purpose of his report was to give an opinion about an injury which occurred in the course of employment on 23 February 2008 and whether the plaintiff was entitled to ongoing medical, and like, services. Of relevance to the issues in this matter, the plaintiff gave him a history that she had sustained a lower back injury in 2001 which continued to give her pain and affect her function. Further, the plaintiff reported referral of pain into the left knee from the 2001 injury, and that her sleeping was disturbed by pain in the neck and lower back and that she had reduced sitting and standing capacity due to her lower back pain. At the time, the plaintiff was attending for physiotherapy on a weekly basis with respect to her neck and lower back. She was also doing strengthening exercises for her neck and lower back. On presentation, the plaintiff presented as a –
“… pleasant lady who was co-operative throughout the interview and examination.”[133]
[132]Exhibit 2
[133]Defendant’s Court Book (“DCB”) 7
106 On examination of the lumbar spine, there was poor definition of the paravertebral musculature. Movement was very restricted and variable on repeated testing “indicating a functional overlay”.[134] In any event, the current medical condition was expressed as follows:
“… chronic pain emanating from the lumbar spine, cervical spine and left shoulder, the cause of which is not known to me given a clinical examination today and the information available to me.”[135]
[134]DCB 7
[135]DCB 7
107 The plaintiff was also examined by occupational physician, Dr Malcolm Brown, who reported on 14 September 2011.[136] He had been asked to –
“… help determine the worker’s weekly payments entitlements … with respect to an injury which occurred on 15 November 2009”.[137]
[136]Exhibit 3
[137]DCB 12–15
108 With respect to the back injuries from 2001, there is limited reference. Dr Brown reports:
“Accident – Ms Buultjens appears to have had a number of incidents at work, with low back pain from early 2000, when an individual with Down’s syndrome pulled her neck and left shoulder.”[138]
[138]DCB 13
109 Dr Brown does not appear to trace a history of symptoms and treatment thereafter, in any detail.
110 As to her clinical history, Dr Brown recites:
“Ms Buultjens described a series of incidents over the past 10 years, with consequent neck pain, left shoulder pain, right shoulder pain, left knee pain, and low back pain.”[139]
[139]DCB 13
111 Once again, Dr Brown does not appear to trace the origins and course of treatment with respect to the lower back pain. On examination of the three affected areas, there was some limitations of movement but, apparently, otherwise unremarkable.
112 Dr Brown noted that the current treatment consisted of analgesics only and that this type of treatment was appropriate, and that she would need to continue with analgesics, as long as she had significant symptoms. He considered that cessation of all treatment would adversely affect her capacity for work and activities of daily living.
113 Importantly, he considered that there was no clear evidence of a work-related injury in this case and he thought that her condition appeared to be largely age-related degeneration. He stated:
“There is not clear evidence of a specific work-related injury from 15 November 2009. Employment does not appear to be a cause at present.”[140]
[140]DCB 14
114 Because of the focus of his opinion on 15 November 2009, I do not find his report to be particularly helpful with respect to the issues raised in this matter, particularly with respect to the 2001 injuries.
115 The defendant then tendered in evidence two reports of occupational physician, Dr Dominic Yong, dated 21 November 2012 and 27 November 2012.[141] Dr Yong was specifically consulted concerning the onset of an injury in late September 2012. This involved a client being placed in a car, losing his balance and pulling down firmly on her left upper arm. The plaintiff stated that she was pulled from a standing position into a kneeling posture, and felt immediate pain in her left knee, low back, left shoulder and neck. She stated that she worked the rest of her shift and self-managed her condition.[142] Thereafter, apparently, she was troubled by pain, especially in the left knee and neck. She was attending a chiropractor with respect to those two areas and her condition was improving. Dr Yong thought that she was presently unfit for any duties.
[141]Exhibit 4
[142]DCB 21
116 As part of her past medical history, Dr Yong noted the following:
“Ms Buultjens stated she has had a previous back injury in 2001. She stated that she was assisting a resident in bed when she had the onset of back pain. She stated that a few months later it worsened and she required treatment such as physiotherapy modalities. She stated that she has been on long term restricted duties since this time. She stated the long term restrictions included the following:
·Minimum bending.
·No lifting more than 5kgs.”[143]
[143]DCB 22-3
117 As a result of the incident described, Dr Yong considered that the only residual impairment with respect of this incident was –
“Left knee medial collateral ligament strain which is improving with treatment.”[144]
[144]DCB 24
118 Importantly, he commented as follows:
“Ms Buultjens has a current capacity to participate in an activity based recovery program. It is likely as she participates through an activity based recovery program, the restrictions for the left knee will resolve. It is likely that as these left knee restrictions resolve, she will return back to her long term work restrictions for her back.”[145]
[145]DCB 25
119 Dr Yong then set out detailed lists of tasks which would comply with restrictions for her left knee and back and also a detailed list of tasks which would not comply with those restrictions. The latter category is set out as consisting of twelve dot points at the top of page 7 of his report.[146] Given that he considered that the left knee condition was improving, I consider that these dot points are evidence of consequences pertaining substantially to the long-term lumbar back condition.
[146]DCB 26
120 Dr Yong further stated:
“I have listed the duties that she is unable to do.
However, with treatment, the restrictions for the knee will cease and she will be able to return back to her role with reasonable adjustments as described above for her long standing back condition. It is likely that these restrictions for the back will last for the long term.”[147]
[147]DCB 26
121 The defendant then decided to obtain alternative medical opinions from occupational health consultant, Dr David Ho, who reported on three occasions, being 30 January 2013, 4 February 2013 and 28 February 2015.[148]
[148]Exhibit 5
122 In his first report dated 30 January 2013, Dr Ho was asked to assess the effects of an injury which occurred on 30 September 2012, as had Dr Yong. He recorded the same mechanism of injury, in that the client had grabbed hold of her left arm and she fell down, hurting her left knee and suffering pain in her neck. Dr Ho reported that the neck and left shoulder pain cleared completely after a month, and that she had recovered from the particular injury. However, he had taken a history that she had hurt her back in 2000 at work and that six months later, she reportedly could not straighten up from her old lower back injury. He does not otherwise report on the course of that back injury.
123 As at 30 January 2013, Dr Ho recorded that she reported stiffness in her lower back if she sits for a long time, otherwise she is symptom free in the lower back.[149] However, she was currently seeing her general practitioner, Dr Waechter on a monthly basis and seeing a physiotherapist twice a week for light physiotherapy treatment. She was taking Celebrex weekly, only as needed, and she had been taking Panadeine Forte up to three times a day, twice a week. She was also using Panadol, which she takes twice daily. He does not comment in respect of which injuries this treatment relates but it is only in the back that he reports ongoing symptoms. In any event, he considered that all injuries referrable to 30 September 2012 had resolved.
[149]DCB 33
124 In his second report dated 4 February 2013, Dr Ho was commenting on a worksite assessment which he conducted on 31 January 2013 with respect to the injury of 30 September 2012. In essence, he believed that the purpose-built home at Sunshine was suitable. He stated:
“… In my opinion the residents do not have any physical disability and are not physically abusive. In addition [the plaintiff] is familiar with the residents and more importantly the residents are familiar with her. She has the support of her colleagues. … .”[150]
[150]DCB 40
125 In his third report dated 28 February 2015, Dr Ho was once again asked to comment on the ongoing management of the plaintiff’s claim with respect to an injury on 30 September 2012. He confirmed that the history previously obtained was accurate. Further, since his last assessment, the plaintiff indicated she was working three full shifts a week. She had taken long service leave for two months from October 2014 until 26 January 2015 with respect to an operation concerning gynaecological cancer. Thereafter, she returned to work on normal duties and normal hours.
126 The plaintiff told Dr Ho she had stopped attending Dr Waechter in 2013 after her return to Young Street. Apparently two months after returning to work, her physiotherapy was also stopped and she had stopped all medication for a time once she had found the gynaecological lesion on ultrasound. Currently, she was taking Panadol, up to six tablets per day, sometimes every day. The Panadol is for neck and lower back and knee pain, and Dr Ho recorded that she no longer visits her doctor. However, under the heading “Current Condition”, he noted:
“Currently she has nagging tooth pain in her left lower back all the time and is worse when sitting or standing for long. The weather does not affect her back. She reportedly has stiffness in the morning. She gets up to go to the toilet regularly at night.
Hence she does not have any prolonged sleep with resultant soreness or stiffness during the night. She feels better when not doing anything. … .
… Currently she sees her local doctor Dr A Michail. She reportedly has pins and needles in the left foot under the foot and the back of the heel. This is when her knees or back plays up. She does not have any pins and needles or numbness in her fingers or hands.
… .”[151]
[151]DCB 44 – 45
127 Although once again there is no clear analysis of the 2001 back injury, but nonetheless Dr Ho considers that she has recovered from injuries sustained in the course of her employment. He states:
“… Currently she has mild residual symptoms … [from] age related minor degenerative changes in her spine. … .”[152]
[152]DCB 49
128 However, he does not seem to articulate at what point symptoms referrable to work-related injury ceased.
Analysis
129 It is clear that the plaintiff was symptom free prior to February 2001.
130 On 24 February 2001, whilst toileting a client suffering from Down’s Syndrome, the client fell heavily on the concrete floor, cutting his head. As the plaintiff tried to help him to his feet, she felt lower back pain which travelled down her left thigh. She claims she never recovered from that incident.[153] Thereafter, she attended her general practitioner, Dr Waechter, some days later, and was put off work for one to two weeks. She states she put up with the pain as best she could and returned to her normal duties. She started taking Panadol and she elected to receive sick leave.[154] Thereafter, her pain continued but she persevered as best she could with her normal work.
[153]Exhibit A, the plaintiff’s first affidavit sworn 8 November 2013, paragraph 9, PCB 10
[154]Exhibit A, the plaintiff’s first affidavit sworn 8 November 2013, paragraph 10, PCB 11
131 Thereafter, the plaintiff suffered a further incident on 24 April 2001 when she went to get the same resident out of bed. Just prior this occasion, I accept that she was still suffering the pain and disability she had referred to and a need for treatment on account of the first incident. On the second occasion, she was attempting to get the resident out of his bed in order to be showered. As she tried to help him get to his feet and toward the shower, she felt “… an aggravation of pain in the same area where I had earlier suffered the injury”.[155]
[155]Exhibit A, the plaintiff’s first affidavit sworn 8 November 2013, paragraph 12, PCB 11
132 Thereafter, the plaintiff again attended her general practitioner and was referred to physiotherapist, Ms Wehbe,[156] as referred to earlier.
[156]Exhibit J
133 Thereafter, the plaintiff continued to receive physiotherapy and analgesia on account of back pain and referred left leg pain. She also regularly attended her general practitioner, as referred to above. On this occasion, the plaintiff remained off work for about three to four months and received WorkCover payments.
134 It is likely that the symptoms lasted thereafter such that she required ongoing consultations with her general practitioner, at least until 2013, as recorded above.
135 It is important to note that when the plaintiff returned to work thereafter, she was moved to a different house where the work “was less physical as the residents were younger and more independent”. She moved out of the house in early 2004 and during the next nine years until 2012, she worked at a residential property of the defendants in Moonee Ponds. It would appear that the nature of the work in these latter two appointments was of a light-duty nature and subject to supervision by her employer and perhaps her treating practitioners. In any event, the evidence would not seem to disclose further injuries in these two periods which have consequences as at the date of hearing which could be considered “serious”, either by way of analysis of general nature of employment or as discrete incidents. In the end, plaintiff’s counsel was not moved to argue strenuously against this proposition.
136 Defence counsel submits that in any event, the two incidents in early 2001 need to have their consequences analysed separately as stipulated by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[157] Further, it is argued that the incident at home in late 2001 needs to be “disentangled”.
[157]Supra
137 Dealing with the latter contention first, the plaintiff has sworn:
“Later in 2001 whilst I was already suffering lower back pain I went to pick something up at home and had a severe episode of pain in the same area. I went to the Royal Melbourne Hospital on that occasion and was given a Pethidine injection. After a period of time the pain returned to the level it had been before the incident at home.
Thereafter I continued to work in the unit with the younger and more independent residents. My back pain continued and I continued to have physiotherapy treatment. On occasions I attended my general practitioner.”[158]
[158]Exhibit A, the plaintiff’s first affidavit sworn 8 November 2013, paragraphs 17 – 18, PCB 12 – 13
138 There is no suggestion that the plaintiff was picking up anything heavy at home and it is likely, in my view, that the back was vulnerable, as evidenced by the ongoing low-back pain. I see no reason not to accept the plaintiff’s assertion that the pain level returned to that as it had been before that incident and as such it amounts to a temporary aggravation of a pre-existing condition.
139 With respect to the first contention, plaintiff’s counsel argues that the February and April 2001 incidents can be seen as the one cause of action, in that they both relate to a system of work involving the manual handling of a particular Down’s Syndrome patient. In support, he cites the decision of his Honour J Forrest J in Kruisselbrink v Nationwide Maintenance Services Pty Ltd,[159] where his Honour ruled that the granting of a certificate for serious injury referrable to one particular day did not shut out the plaintiff from alleging factors in employment prior to that day which had contributed to the injury and ultimately damages before a jury.
[159][2010] VSC 260
140 It appears to me there is some support for this contention arising out of the decision of his Honour Tadgell JA in the matter of Bell Radiology (a firm) v Karen McGraw,[160] where his Honour found that two independent lifting incidents could constitute one question to the jury on the basis that it was the one cause of action arising out of a system of work producing an ultimate injury. If this submission is to be accepted, it would appear that the consequences which flow after April 2001 with respect to the low-back injury could be said to be referrable to that one cause of action and no further analysis need be undertaken.[161]
[160]VSCA (unreported) 7 February 1996
[161]See for example Kite v George Patterson Pty Ltd & Anor [2008] VCC (1 September 2008) per Judge Wischusen
141 On the other hand, defence counsel argues that a Filipowicz type analysis nonetheless has to be made, separating the consequences from each of the two 2001 injuries. It appears to me that on balance, this submission is probably correct and a finding that for example the second injury is a serious injury, but not the first, would not preclude the plaintiff from pleading circumstances of the first injury as elements of the negligent work system which produced the injury in April of 2001.[162] Further, it does not appear to me that the type of employment engaged in from 2002 could justify a Grech[163] analysis, on the whole of the evidence.
[162]Kruisselbrink v Nationwide Maintenance Services Pty Ltd (supra)
[163] Grech v Orica Australia Pty Ltd & Anor (supra)
142 The contemporaneous evidence of both the plaintiff, her general practitioner and the treating physiotherapist would lead to the conclusion that after April 2001, the impairment consequences have been contributed to, probably by the two injuries in February and April. However, when one compares the impairments referrable to either injury as stipulated in Filipowicz, it would appear to me that the impairment ensuing after the first injury was such that the plaintiff was able to return to work on normal duties and did not require physiotherapy treatment. It would appear that after the second injury, that the consequences were more severe, and it was shortly thereafter that the plaintiff suffered sciatica and required intensive physiotherapy. After this injury, she was totally incapacitated for three or four months and was not required to return to those normal duties again thereafter.
143 Accordingly, in comparing the impairments before and after the second injury, it appears that after the first injury, the plaintiff was able to return to normal duties, whereas after the second injury, she was totally incapacitated for a number of months, and then was permanently assessed as fit for light duties. In my view, the second injury has consequences which include rendering the plaintiff able to perform her pre-injury work, albeit with pain, after the February injury, to one where she becomes totally incapacitated for some months and then permanently restricted to lighter work, right up until the present time. Those consequences include the years of monthly consultations with her treating general practitioner, the physiotherapy and other treatment, together with prescriptions of anti-inflammatories and analgesia.
Is the lumbar spine impairment “serious”?
144 In her second affidavit sworn 21 July 2015, the plaintiff swore:
“The pain and restriction I have with my back affects me walking up and down stairs. I have a knee condition which also contributes to my difficulty with stairs. I can use stairs but it is painful. I experience back pain as a result. I usually have to go sideways, like a crab, one step at a time. It increases my back pain when I go up and down stairs. My sleep is interrupted by back pain. I cannot sit or stand in one position for a long period of time.”[164]
[164]Exhibit A, the plaintiff’s second affidavit sworn 21 July 2015, paragraph 4, PCB 19 – 20
145 Further:
“… In my house I had a shower over my bath but, because I got back pain trying to step into the bath, my nephews removed the bath and installed a walk-in shower for me.”[165]
[165]Exhibit A, the plaintiff’s second affidavit sworn 21 July 2015, paragraph 6, PCB 20
146 Further, the plaintiff swore:
“I have had to consult my doctor and specialists many times over the years but unless I have shoulder surgery there is not much more the doctors can do for me, I am told. I have been told that back surgery will not assist my condition. I continue to take medication being Celebrex and or Voltaren as an anti-inflammatory, and 6 Panadol tablets a day as a painkiller. I used to take Panadeine Forte but I had to stop taking that after surgery I had for ovarian cancer.
I have a work-related knee injury as well. That is currently well controlled. My knee was troublesome in 2012 but my doctor told me to rest it which I did with a six-week break from work and it has been greatly improved since. I’ve been able to continue working by managing my back and shoulder injuries, and also been careful with my knee.”[166]
[166]Exhibit A, the plaintiff’s second affidavit sworn 21 July 2015, paragraphs 10 – 11, PCB 21
147 The recourse to medical treatment after 2013 is problematical. In re-examination, the plaintiff was asked whether she was still seeing her general practitioner as at 30 June 2014, to which she replied she could not remember.[167] Upon looking at the clinical notes, she said that she was still seeing the doctor as at June 2014. However, it appears that WorkCover terminated her entitlements and thereafter, she said she paid for physiotherapy treatment out of her own pocket three or four times a year.[168] She also went to Chinese masseurs for back massage.[169] Neither counsel asked her about Dr Yong’s history that she had stopped seeing Dr Waechter in or about 2013. Nor did either counsel ask her about a Dr A Michail, to whom Dr Yong referred her. There is not a report from Dr Michail.
[167]T59, L28
[168]T60, L4 – 8
[169]T60, L15
148 On balance, I think it likely that since the plaintiff’s WorkCover medical expenses were no longer being paid some time in 2013, her recourse to general practitioners has been very scare indeed.[170]
[170]Exhibit A, the plaintiff’s second affidavit sworn 21 July 2015, paragraph 8, PCB 20
149 The consequences are complicated by the other injuries to the following effect. In her second affidavit, the plaintiff swore:
“I continue to have constant but variable pain in my left shoulder. When I try to go to sleep I have to adjust my pillow a number of times to get comfortable. If I roll onto my left side during the night I get sufficient shoulder pain to wake me up on occasions. That happens on average 3 or 4 times a week. It is difficult to get back to sleep and that makes me lethargic the next day. I was doing Pilates for my back at one stage but my left shoulder and neck symptoms were exacerbated by the movements required and therefore prevented me from continuing with that.”[171]
[171] Exhibit A, the plaintiff’s second affidavit sworn 21 July 2015, paragraph 7, PCB 20
150 Further, the plaintiff swore:
“I continue to suffer significant symptoms in my back, left shoulder and neck. With each condition the symptoms I have fluctuate and I have good days and bad days. I have been told that I need a shoulder operation where a bone will be shaved, but I have avoided having that operation because I have also been told that it will require me to have a long time off work and my financial position does not allow that. I simply have to put up with the pain and keep working.”[172]
[172]Exhibit A, the plaintiff’s second affidavit sworn 21 July 2015, paragraph 2, PCB 19
151 Further, the plaintiff has sworn:
“In 2013 I was experiencing a lot of left shoulder and arm pain. The pain was travelling down from my shoulder to the lower part of my arm. My WorkCover medical expenses were no longer being paid. I consulted Dr Hayman Joseph of St George Family Practice, who was treating another medical condition I had, ovarian cancer. I had to have an injection in my left arm for pain which was travelling from my shoulder down my left elbow. I have been told I had developed a tennis elbow condition which I believe would [be] because of the modified way I use my left arm because of my shoulder injury. I cannot straighten my left arm. I have no similar problems with my dominant right arm.”[173]
[173]Exhibit A, the plaintiff’s second affidavit sworn 21 July 2015, paragraph 8, PCB 20 – 21
152 Accordingly, it is clear that the plaintiff continues to suffer ongoing consequences with respect to the low back, the left shoulder, her left knee and perhaps her neck. I can accept that she takes over-the-counter Panadol tablets, up to six per day, as a painkiller but I am not able to find who prescribes ongoing Celebrex and or Voltaren for which of the conditions. On balance, I find that the back injury and the impairment that flows after April 2001 is a contributing factor to the need for analgesia but the evidence does not allow me to disentangle the relative need for analgesia with respect to any or all of the other conditions.
Findings
153 I am unable to find, on the totality of the evidence, that there is a serious long-term impairment with respect to the cervical spine and or the left shoulder which is referrable to any specific incident, or indeed the general nature of the work at any particular time.
154 I do find that the plaintiff has suffered a long-term impairment with respect to the lumbar spine following the incident of 24 April 2001 which has led to consequences consisting of chronic pain, the need for constant treatment between 2002 and 2013 by way of monthly consultations with the general practitioner and prescriptions of anti-inflammatories and analgesia on account thereof. I also find that the plaintiff, after 24 April 2001, was never able to return to the full duties that she had been performing prior to that date and was thereafter, permanently on restricted duties probably most succinctly analysed by Dr Yong in his report of 21 November 2012.[174]
[174]Exhibit 4, DCB 26
155 The severity of those symptoms has not precluded the plaintiff from engaging in wide-ranging overseas travel from about 2003 or 2004 right up until 2014.[175] It would have to be said that on occasions, she attests to suffering significant episodes of back pain, requiring her to stay in bed some days and not being able to engage with fellow travellers.
[175]T37, L28 – T29, L26 and the plaintiff’s second affidavit sworn 21 July 2015, paragraph 5, PCB 20
Conclusion
156 It is unusual that a court hearing a serious injury application has to adjudicate upon an injury occurring as long ago as 2001. In any event, this is the case here, and it is clear that the plaintiff has suffered an impairment on account of the April 2001 back injury as referred to above which has required her to undergo probably some twelve years of constant treatment thereafter, such that she never recovered from that particular back injury. The consequences have included not only the need for the treatment but a curtailing of her employment and recreational activities commensurate with the suffering of the chronic pain. It is probable, in my view, that the consistent treatment stopped some time in 2013 as a result of the WorkCover insurer terminating benefits. In any event, I accept that the plaintiff has suffered ongoing pain thereafter and has indeed paid for her own physiotherapy three or four times per year and has probably undergone Chinese massage. In my view, these consequences tip the scales in her favour such that I find that the consequences are “more than significant or marked and at least very considerable”.
157 Leave will be granted to the plaintiff to issue proceedings at common law for pain and suffering damages on account of injury suffered on or about April 2001 in the course of her employment with the defendant.
158 I will hear the parties as to any consequential orders.
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