Camilleri v Victorian WorkCover Authority
[2016] VCC 610
•20 May 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST
Case No. CI-14-03446
T0NI MAREE CAMILLERI Plaintiff v VICTORIAN WORKCOVER AUTHORITY Defendant ---
JUDGE:
HIS HONOUR JUDGE CARMODY
WHERE HELD:
Melbourne
DATE OF HEARING:
2 March and 11 April 2016
DATE OF JUDGMENT:
20 May 2016
CASE MAY BE CITED AS:
Camilleri v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:
[2016] VCC 610
REASONS FOR JUDGMENT
---Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury to the plaintiff’s spine – Chronic Pain Syndrome – the plaintiff is required to disentangle psychological factors from her physical injury – the plaintiff’s capacity to work is limited by physical injury to her spine
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Humphries & Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment:Application for serious injury certificate for pain and suffering and loss of earning capacity is granted in respect of the physical injury to the plaintiff’s spine.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr R Meldrum QC with
Mr S CarsonMaurice Blackburn Lawyers For the Defendant Mr M Clarke Wisewould Mahoney HIS HONOUR:
1 The plaintiff’s application is brought by Originating Motion dated 18 July 2014. The plaintiff seeks leave to bring proceedings to recover damages for pain and suffering and loss of earning capacity as a result of an injury to her back in an accident which occurred in the course of her employment on 1 May 2007.
2 On 27 May 2010, the plaintiff suffered a further injury to her back in the course of her employment, which was described as an aggravation of the original injury on 1 May 2007.
3 As is the process in these types of serious injury applications, the Court is handed a court book for the plaintiff and the defendant. The court books are tendered as evidence. Each of the Court Books contain voluminous medical material. The plaintiff is the only witness to give evidence in the hearing. The parties then tendered the medical material contained in their respective Court Books to support the case for their client. This hearing followed that process on 2 March 2016. I reserved the matter for judgment.
4 In the preparation of the judgment, I read the medical material tendered in both of the Court Books. In particular, I read the clinical notes of the plaintiff’s treating general practitioner in respect of the treatment and history taken from the plaintiff for both of the incidents in 2007 and 2010, respectively. I was concerned that neither party had properly addressed the Court on the effect of the second accident upon the plaintiff’s condition. I sought further submissions from the parties on this limited issue. Due to the unavailability of counsel, the matter did not come back on for hearing until 11 April 2016. On that day, the parties made further submissions on the effect of the 27 May 2010 event on this application for serious injury arising out of the incident which occurred in May 2007. The submissions by the plaintiff were partly written and partly oral. The defendant’s submissions were oral.
5 In this proceeding, the following evidence was given or tendered:
(a) the plaintiff gave evidence and was cross-examined;
(b) Exhibit A, the Plaintiff’s Court Book (“PCB”), at pages 19 to 99;
(c) Exhibit 1, the Defendant’s Court Book (“DCB”), pages 1A to 77.
6 Mr Clarke, counsel for the defendant, identified the following issues to be determined by the Court:
(i)The plaintiff has failed to disentangle the psychiatric or psychological contribution from the physical contribution to the consequences relating to the injury to her spine. Mr Clarke referred to the two-step process set out in Meadows v Lichmore Pty Ltd;[1]
(ii)The plaintiff has failed to disentangle the consequences attributable to the spine and to the left shoulder in respect of pain and suffering and loss of earning capacity. Mr Clarke relied upon the authority of Peak Engineering & Anor v McKenzie;[2]
(iii)The plaintiff has not satisfied the requisite narrative test for pain and suffering in respect of the spine or the left shoulder injury. The plaintiff cannot aggregate the two body functions of left shoulder and spine; and
(iv)The plaintiff has failed to establish the requisite 40 per cent loss of earning capacity.[3]
[1]Transcript (“T”) 4
[2][2014] VSCA 67
[3]T5
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Accident Compensation Act 1985 (“the Act”) which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
8 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 or in the course of her employment on or after 1 May 2007;[4]
[4]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(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”;[5]
[5]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Subsection (38)(c) of the Act 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”;
(e) Subsection (38)(h) of the Act 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;
(f) Subsection (38)(e) of the Act provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) 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 ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required 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
10 The plaintiff was born in Australia in 1976 and is currently forty-nine years of age.[6] The plaintiff is married and has three children. The youngest of her children is currently attending school at Year 11.
[6]PCB 19
11 The plaintiff completed Year 11 education.[7] The plaintiff subsequently has worked in a number of employment roles. The plaintiff was employed as a cook and managed a children’s play centre for two years. The plaintiff then worked for ten years at a Tattersall’s franchise. In July 2006, the plaintiff started employment with the City of Darebin as a home and personal carer. She worked on a part-time basis. The plaintiff’s usual hours of work were 25 hours per week.
[7]PCB 20
Injury with the Defendant
12 In her affidavit dated 12 March 2014, the plaintiff sets out the circumstances of the accident causing injury to her spine. She states as follows:
“I’ve suffered an injury at work on 1 May 2007. I was performing some cleaning work and slipped while walking in the laundry area of the client’s house. The client’s name was Antonia Attard and the premises were situated at 24 Seymour Street, Preston. There was dog urine on the floor of the laundry. I skidded and lost balance. I stopped myself from falling over entirely by grabbing the edge of a laundry sink with my left hand.
The fall wrenched me around. I felt a burning sensation in the left side of my body. This was painful, although I thought that it would probably pass. I recall reporting the injury later in the afternoon.”[8]
[8]PCB 20 – 21
13 Initially, the plaintiff thought that she had injured her ribs on the left side of her body. She also thought that her left shoulder had been injured when she tried to save herself from the fall.
14 The defendant accepts that the plaintiff was injured as she has described, on 1 May 2007.
15 On the day after the work accident, the plaintiff was unable to attend her employment due to pain in her upper-left side of her body, her left arm and left shoulder.[9] On the day following, she attended at an aged-care qualification course, but was in a great deal of pain. On the third day after the accident, the plaintiff attended work but was unable to continue. She was taking Nurofen tablets to deal with the pain.
[9]PCB 21
16 On 5 May 2007, the plaintiff attended her general practitioner, complaining of left rib fractures and pain in her back area.[10]
[10]PCB 46n
17 The plaintiff remained off work completely for approximately six weeks. She then returned to work in June 2007, performing light duties. The plaintiff described the light duties as “… basically respite work sitting with the clients at their homes”.[11] The plaintiff never returned to her pre-injury duties.
[11]PCB 21
18 The plaintiff continued to work in the lighter alternative duties while taking painkilling medication. She continued to work in that capacity until a second incident, which occurred on 27 May 2010. The plaintiff stated that she was leaning over a toilet to clean it when she felt pain in her back.[12] After this incident, the plaintiff was off work for a further six weeks and then returned to her employment in the capacity of light alternative duties. The incident on 27 May 2010 was an innocuous and simple process of the plaintiff leaning forward, which activated her pain. The plaintiff continued to work until the end of 2010, when she could no longer continue with the respite-type work due to her symptoms. At that stage, the plaintiff had a work restriction of 3 kilograms in weight.[13]
[12]PCB 22
[13]T7
19 In the period between the 2007 incident and the 2010 incident, the plaintiff had numerous radiological examinations, including an x-ray and CT scan of her spine and neck. The radiological reports state that there was minor anterior endplate and anterior osteophytes at L1-2.[14] The radiological reports also noted anterior vertebral wedging at the thoracolumbar junction.[15] The radiology did not show any acute injury to the plaintiff’s spine.
[14]PCB 44
[15]PCB 45
20 In the most recent MRI scan of the lumbar spine, which was performed on 30 June 2015, the following conclusion was noted:
“No spinal canal or neural exit foraminal narrowing. Mild degenerative disc changes, and moderate facet joint arthropathy with a synovial cyst arising from the right L4/5 facet joint, projecting posteriorly in the paraspinal soft tissue. No nerve root impingement.”[16]
[16]PCB 46a
21 I note, for completeness, that at the MRI scan of the plaintiff’s thoracic and lumbar spine performed on 1 October 2010, it was noted that there were minor disc bulges at T11-12 and L1-2. On that occasion, there was no evidence of neural impingement throughout the range of the study.[17]
[17]PCB 46
Medical treatment
22 The plaintiff first attended her general practitioner as a result of the 1 May 2007 accident on 5 May 2007. On that occasion, the plaintiff was complaining of left-sided rib pain.[18] On 8 May 2007, the plaintiff attended her general practitioner again, and was advised that the x-ray of her ribs was “nad”. She was given a WorkCover Certificate for the period ending 16 May 2007 and referred to physiotherapy for treatment.
[18]PCB 46n
23 On 15 May 2007, the plaintiff was reviewed by her general practitioner and sent for a CT scan. She had her ribs strapped by a physiotherapist at this time. Her complaint was that her ribs were painful.[19]
[19]PCB 46l
24 On 25 May 2007, the plaintiff advised her general practitioner that her other WorkCover doctor had diagnosed thoracic spine problems. At CT scan was discussed with her by the general practitioner at that time.[20] The plaintiff had been directed to a WorkCover doctor by her employer. I note that there is no report from a company or employer general practitioner in the materials. The plaintiff’s own general practitioner prescribed Endep for her on 26 May 2007.[21]
[20]PCB 46k
[21]PCB 46k
25 On 8 June 2007, the plaintiff attended Dr John Martiniello, general practitioner, who ordered a left-sided T4-5 rib point injection under ultrasound to treat persisting left thoracic chest wall pain.[22]
[22]PCB 46j
26 On 23 June 2007, Dr Martiniello referred the plaintiff to Dr Vivien, a pain specialist. Dr Martiniello prescribed Tramadol, 50 milligrams, for pain relief.
27 In August 2007, Dr Martiniello prescribed Endep for the plaintiff.
28 On 21 September 2007, the plaintiff went to Dr Siemienowicz, and discussed the results of the CT scan and the x-ray of her cervical spine, which was performed on 18 September 2007. The plaintiff changed her treatment from a physiotherapist to an osteopath at this time.
29 In November 2007, the plaintiff advised Dr Siemienowicz that her work wanted an MRI scan of her neck and chest to make sure everything was “okay”.[23] Dr Siemienowicz was not supportive of that procedure. I note that an MRI scan of the plaintiff’s left shoulder performed on 17 December 2007 revealed an anterior labral tear with a small para-labral cyst in the left shoulder, with mild subscapularis tendonosis.[24]
[23]PCB 46i
[24]PCB 42
30 From January 2008 to 31 May 2010, there was a gap in the medical notes about any treatment received by the plaintiff for her spine or symptoms in her back.[25]
[25]PCB 46h
31 In the medical material tendered by the plaintiff, there were two diagnostic radiological procedures ordered for the plaintiff:
(i) 16 December 2009, an ultrasound on the plaintiff’s left lower-back;
(ii) 19 January 2010, a CT scan of the lumbosacral spine.
32 Both of these investigations were ordered by the general practitioner from the Greenvale Medical Centre.[26] Surprisingly, there was no medical report or medical notes from the Greenvale Medical Centre tendered in this proceeding.
[26]PCB 43-4
33 The ultrasound report dated 16 December 2009 noted the examination was “concentrated on the area of the left lower back laterally where the patient is tender due to previous trauma”.[27] There was no significant finding and it was recommended that a CAT scan be performed on the plaintiff.
[27]PCB 43
34 The CAT scan report of the lumbosacral spine, dated 19 January 2010, notes “chronic back pain. Left greater than right.”[28] The conclusion of the report is:
“Essentially and (sic) unremarkable study.
No CT features of spinal canal or neural foraminal stenosis within the lumbar spine.
Minor anterior endplate anterior osteophytes at L1/2.”[29]
[28]PCB 44
[29]PCB 44
35 These investigations confirm the plaintiff’s evidence, both in her affidavits and in her evidence in Court, that she continued to have serious spinal pain from the first injury in May 2007 up until the present time.
36 On 31 May 2010, the plaintiff attended her general practitioner at Gladstone Park Medical Centre, after her work incident on 27 May 2010. The complaint on this occasion was for lumbar spine pain, mainly on the right side. This is the second injury to the plaintiff’s spine.[30]
[30]PCB 46h
37 On 2 June 2010, the plaintiff had an x-ray to her lumbar spine.[31] The conclusion of that examination was:
[31]PCB 45
“Possible muscular spasm causes reversal of the upper cervical lordosis. There is also tilting of the upper cervical spine towards the right and a lower lumbar left-sided scoliosis.
Anterior vertebral wedging at the thoracolumbar junction is likely longstanding as is degenerative end plate lipping in the upper lumbar spine.
No acute injury seen. Mild bilateral mid cervical foraminal stenoses particularly on the left.”[32]
[32]PCB 45
38 On 10 July 2010, the plaintiff attended a doctor at Gladstone Park Medical Centre for review. The general practitioner’s notes from that day are instructive about the condition of the plaintiff’s spine from the May 2007 accident to that consultation:
“WorkCover issued not yet fully accepted trial of acupuncture WC 193 -payable patient
Will try acupuncture on two or three occasions only as a trial.
On neck pain headaches particularly in the morning with morning stiffness or inflammation.
Low back pain particularly on the left-hand side over in the flank area hypersensitivity associated stress and irritability and tension and poor sleep
She may benefit pleas from the use of Endep to assist with sleep and also to assist with chronic pain management
Claim has not been fully accepted
She will also take Celebrex every night with dinner for two weeks to assist with stiffness and soreness and assist with sleep
Repeat acupuncture one week
Under WorkCover-patient will pay initial consultations until claim has been accepted
Repeat in one week
Very tender in the area of the left flank up the sacrum thoracic and upper lumbar spine particularly in the facet joint areas also around the neck and shoulders we also use points distally in the left leg
Patient cannot take anti-inflammatory medications because of VW disease
I have commenced are on to Panadol osteo at nighttime nighttime and Endep 10 mg half an hour before bed
She believes this issue initially occurred three years ago but did settle down.
Around the end of May she was assisting in client from a bidet and developed sudden pain on the left flank with spasm also developed associated neck and shoulder pain is particularly worse morning in during the night
is pain is at high risk of developing into a chronic problem-I have commenced Endep and she’d may benefit from counselling and chronic pain management also please note for the doctors looking after her
I will only continue assisting with some acupuncture for her annual trial this on two or three occasions only-patient unfortunately will need to pay the accounts and seek reimbursement from WorkCover
Rx: Panadol Osteo Modified release tablets 665 mg [96] x 2 – Qty: 2*96 Rpts: 5 – Take 2 tablet nocte Bedtime
Rx: Endep Tablets 10 mg [50] – Qty: 1*50 Rpts: 2 – Take 1 tablet nocte 1 - hr before slep.”[33]
(sic).
[33]PCB 46f-46g
39 In the period 2010 to the time of the hearing, the plaintiff has continued to be managed by her general practitioners. She has been prescribed Celebrex, Panadol Osteo,[34] Mersyndol Forte,[35] Tramadol,[36] Targin and Lyrica.[37]
[34]PCB 46f
[35]PCB 46d
[36]PCB 31
[37]PCB 32
40 Dr Siemienowicz referred the plaintiff to Mr J McMahon, a neurosurgeon, in June 2012.[38] I note that there is no report from Mr McMahon, nor any evidence from the plaintiff saying that she attended him.
[38]PCB 41
41 The plaintiff’s current general practitioner at Gladstone Park Medical Centre is Dr Beikaee. Dr Beikaee diagnosed the plaintiff as suffering from chronic back pain with features of Chronic Pain Syndrome.[39] Dr Beikaee referred the plaintiff for further physiotherapy treatment. The plaintiff’s current medication regime is Targin (5 x 2.5 milligram) and Lyrica.
[39]PCB 32
42 The most recent diagnostic examination of the plaintiff was an MRI scan of her lumbar spine performed on 29 June 2015.[40] The conclusion reads as follows:
“No spinal canal or neural exit foraminal narrowing. Mild degenerative disc changes, and moderate facet joint arthropathy with a synovial cyst arising from the right L4/5 facet joint, projecting posteriorly in the paraspinal soft tissue. No nerve root impingement.”[41]
[40]PCB 46a
[41]PCB 46a
43 This examination provides a diagnostic explanation that on the plaintiff’s evidence, she has a continuing soft-tissue injury and pain in her back. The plaintiff’s condition and treatment continue to the current time.
Medical opinions
The Plaintiff’s doctors and treaters
Dr Richard Siemienowicz
44 Dr Siemienowicz, general practitioner, prepared two reports, dated 31 May 2011 and 3 July 2012. Both of these reports are relatively old and are not presently helpful to the issue of serious injury certification at this point in time. However, the reports do provide proper historical context of the treatment and diagnosis the plaintiff has received in the past.
45 Dr Siemienowicz has previously diagnosed the plaintiff with musculoligamentous strain, but noted that an MRI scan disclosed minor disc bulges with no nerve impingement.[42]
[42]PCB 40
46 In his later report, Dr Siemienowicz noted that the plaintiff was complaining about lower-back pain and some neck pain. He stated as follows:
“Considering the results of the original MRI (please see the report that you have) and the recent deterioration and new symptomatology she has suffered a troublesome back injury.”[43]
[43]PCB 41
Dr Seyedehsan Beikaee
47 Dr Beikaee, general practitioner, prepared a report dated 18 February 2016. He is the plaintiff’s current general practitioner.
48 In his report, Dr Beikaee notes that the plaintiff had originally been injured in 2006 (2007) and suffered a re-injury, as he described it, in 2010. Dr Beikaee’s opinion is that the plaintiff has chronic low-back pain and some features of Chronic Regional Pain Syndrome.[44] Dr Beikaee is currently treating the plaintiff by prescribing painkillers: Targin 5 x 2.5 milligram, and Lyrica, to control her pain. He has also referred her to physiotherapy.
[44]PCB 32
49 Dr Beikaee’s opinion is that, as at February 2016, the plaintiff had a capacity for modified duties, or alternative duties, within the restrictions and with limited hours. He thought the plaintiff could not return to her pre-injury duties because of her pain. Dr Beikaee noted that he could not predict her future capacity for pre-injury work, as it is uncertain.[45]
[45]PCB 31 – 32
Mr Thomas Kossmann
50 Mr Kossmann, orthopaedic surgeon, prepared a medico-legal report dated 20 November 2015.
51 Dr Kossmann took a history from the plaintiff that in mid to late-June 2010, she stopped working due to the ongoing pain issues in her thoracic and lumbar spine. The plaintiff had undergone an MRI scan of the thoracic and lumbar spine which showed that she was suffering from minor disc bulges at T11-12 and L1-2 levels.[46] At the time of his examination of the plaintiff, Mr Kossmann noted that the plaintiff was on the medications of Lyrica, Tramadol and Mersyndol.
[46]PCB 48
52 Mr Kossmann diagnosed the plaintiff as follows:
“Discogenic and mechanical pain of the thoraco-lumbar spine with mild disc bulges at the T11-12 and L1-2 levels, as well as loss of height of approximately 20% at the T12-L1 level and degenerative changes in her lumbar spine at the L1-2 and L2-3 levels and a synovial cyst arising from the right L4-5 facet joint”[47]
[47]PCB 50
53 In Mr Kossmann’s opinion, the plaintiff cannot return to her pre-injury employment. In Mr Kossmann’s opinion, the plaintiff had no work capacity in any physically demanding work, and he concluded that she has no work capacity at all.[48]
[48]PCB 51
Dr Helen Sutcliffe
54 Dr Sutcliffe, occupational physician, prepared two medico-legal reports in respect of the plaintiff, dated 8 February 2016 and 18 February 2016. The latter report is a clarification of a statement made by her in her original report of 8 February 2016.
55 Dr Sutcliffe took a history from the plaintiff that she was in constant pain in her lower back, moreso on the left side in the high lumbar area and in the neck. The plaintiff also complained of pain in the axillary region at the left, and also on the lateral chest wall on the left side. The effect of the pain was to interfere with the plaintiff’s sleep.[49]
[49]PCB 58
56 Dr Sutcliffe noted, on examination, that the plaintiff displayed tenderness to the palpitation of the left lateral back and there was a major muscle spasm noted in that area.[50]
[50]PCB 60
57 Dr Sutcliffe’s diagnosis was that the plaintiff had sustained a musculoligamentous injury and an aggravation of degenerative change in the cervical spine and thoracolumbar spine. The initial injury was from the twisting fall, when the plaintiff slipped on dog urine in her client’s house. Dr Sutcliffe went on to opine that the plaintiff had sustained significant muscle injury to the left lumbar region, with persisting major spasm and sensory change, together with reduction in the range of movement of the thoracolumbar sacral spine.[51]
[51]PCB 63
58 Dr Sutcliffe’s opinion was that the plaintiff had no work capacity and that that would continue into the foreseeable future.[52]
[52]PCB 64-5
Ms Katrine M Green
59 Ms Katrine Green, psychologist, prepared two reports, dated 5 February 2016 and 24 February 2016.
60 A summary of the reports prepared by Ms Green is that the plaintiff has no work capacity for the foreseeable future. In particular, the opinion of Ms Green was that the plaintiff could not perform the roles of a personal carer and assistant, housekeeper and room attendant, call centre information clerk, enquiry/information clerk, retail sales assistant, driver-courier, school crossing supervisor or factory process worker. Ms Green’s opinion was that these roles were beyond the physical capacity of the plaintiff to perform, given her level of pain and medication.
The Defendant’s medical opinions
Dr Dominic Yong
61 Dr Yong, specialist occupational physician, prepared five reports, dated 4 February 2016, 10 February 2016, 24 February 2016, 7 May 2014 and 6 September 2010.
62 In his report dated 10 February 2016, Dr Yong gave the following opinion:
“I also noted that with respect to the working hours, given the period of time out of the workforce, a graduated return to work program would be indicated. My initial suggestion was that she commence working 3 hour shifts for 3 days per week, and she could gradually increase her working hours on a progressive basis back to the pre-injury level of 18 hours per week. I stated this could occur over a 2 month period.[53]
[53]DCB 3
63 In an earlier report dated 4 February 2016, Dr Yong noted the plaintiff’s then current medication included Targin, two tablets a day, and Mersyndol, six to eight tablets a day. He also noted the plaintiff was seeing a chiropractor every few weeks for passive treatment and that she was doing exercises in the backyard pool. The plaintiff had told Dr Yong that she had ceased taking Endep, Tramadol and, more recently, Lyrica.
64 In Dr Yong’s opinion, the plaintiff was a woman who reported ongoing pain in her low back after aggravating the degenerative back condition. He noted there was a presence of deconditioning. He noted, also, that the Waddell signs that he had previously given a report about, appeared to be resolving and that the plaintiff’s condition had been complicated by the development of psychological comorbidity.[54]
[54]DCB 12
65 A fair summary of Dr Yong’s opinion is that he thought the plaintiff could work in part-time alternative duties-type employment. He noted that over the period of his time of assessing the plaintiff, that she had developed psychological comorbidity, but the Waddell signs had been resolving.[55]
[55]DCB 12
Mr Vasudeva S Pai
66 Mr Pai, consultant orthopaedic surgeon, prepared two reports dated 1 March 2016 and 5 February 2016. In Mr Pai’s opinion, he agreed with both Mr Kossmann and Dr Sutcliffe, that the plaintiff does not have a work capacity.[56] In his report, he noted that:
“… Usually with thoracolumbar spinal pain the radiation is along the intercostal region and sometimes the pain can radiate downwards. … .”[57]
[56]DCB 36b
[57]DCB 36c
67 This description of the pain pattern is the same pattern that the plaintiff describes to her medical practitioners and particularly her treaters.
68 In his initial report, Mr Pai was of the opinion that the injury event initially caused some sprain, and due to some unknown mechanism, the plaintiff has developed a Chronic Pain Syndrome. This can be an outcome in about 5 to 10 per cent of cases of neck and back pain. The reason for people developing a Chronic Pain Syndrome is not known in literature.[58]
[58]DCB 44
69 Mr Pai was of the opinion that the plaintiff was suffering from a significant functional component, based on the consistency of the pain symptoms over a long period of time. Mr Pai had a strong suspicion that there were psychosocial factors at work in relation to the plaintiff’s condition.
Dr Gale Curtis
70 Dr Gale Curtis, orthopaedic surgeon, prepared a medico-legal report dated 2 June 2014. On examination of the plaintiff, Dr Curtis noted, in respect of the thoracolumbar spine:
“Her contour was normal, though I felt she had a mild lumbar scoliosis. Her tenderness was largely to the left of the midline between the iliac crest and her ribs. All movements of her thoracolumbar spine were restricted by some 10% or 15%.”[59]
[59]DCB 49
71 Dr Curtis made note that one of the Waddell’s criteria for inconsistency, on examination, was present.[60]
[60]DCB 49
72 Dr Curtis noted that the plaintiff had suffered broad-based bulge at T11-12, with no significant thecal indentation. The conclusion is that she has minor broad-based bulges at T11-T12 and L1-L2 without evidence of neural impingement. In Dr Curtis’s opinion, the plaintiff had clearly sustained significant soft-tissue musculoligamentous injuries to her cervical and thoracolumbar spines and the effects appear to have entered a chronic phase.[61]
[61]DCB 50
73 Dr Curtis was of the opinion that there were psychological issues operative in the plaintiff's presentation.[62]
[62]DCB 51
74 Dr Curtis was of the opinion that the plaintiff had a work capacity to return on a graduated basis for suitable duties.
Dr Chris Baker
75 Dr Baker, specialist in occupational medicine, prepared a report dated 29 August 2011. This report is an old report and of little assistance to the Court in assessing the plaintiff’s condition at the present time.
76 In the report, Dr Baker noted that on examination, the plaintiff’s spine was tender on the left side of the thoracolumbar region.[63] He noted in the history section of his report, that the plaintiff had told him her symptoms in her back had continued from her first injury in 2007.[64] At that time, Dr Baker was of the opinion that the plaintiff’s symptoms were likely to continue into the foreseeable future and he did not see the plaintiff returning to unrestricted pre-injury duties.[65]
[63]DCB 56
[64]DCB 58
[65]DCB 58
Mr J L Sinha
77 Mr Sinha, surgeon, prepared a reported dated 18 June 2007. Given the date of the report, it is of little or no assistance to the Court in assessing the plaintiff’s condition at this time. It notes that the plaintiff sustained an injury on 1 May 2007 in the circumstances fully set out in previous medical reports, and the plaintiff’s evidence.
Ms Janette Ash
78 Ms Ash, occupational therapist, of Recovre, prepared a report dated 10 February 2016.[66] The report was described as a suitable employment report. This report has not been commented upon by Ms Katrine Green.
[66]DCB 66 – 77
79 Ms Ash’s report sets out that the plaintiff is suitable for a lifestyle assistant role in the aged care industry. The report sets out fully the requirements of the role as a lifestyle assistant. I accept the plaintiff’s evidence that she would be unable to perform this role, and do not accept that it is a proper option for suitable employment for the plaintiff to be performing.
The credit of the Plaintiff
80 I assess the plaintiff as being a truthful and honest witness, doing the best she can to accurately report her condition to the Court. I accept, also, that as a result of her ongoing pain, she has become “deconditioned” and, in part, somewhat focused on her pain symptoms. That does not subtract from, or result in, her exaggerating the level of pain that she is suffering.
81 The history that the plaintiff gives to each of the treating doctors, and also the medico-legal examining doctors, is consistent. It is also consistent with her evidence to the Court, both in affidavit form and viva voce evidence. I rely on that consistency to bolster my assessment of the plaintiff’s credibility as a witness.
82 While some of the doctors who examined the plaintiff on behalf of the defendant have referred to psychological impact or functional overlay being displayed by the plaintiff, I do not accept that is the case. In this case, doctors seem to, on occasion, refer to a Chronic Pain Syndrome and psychological factors as one and the same thing; or, alternatively, use the terms interchangeably. In this case, I accept that the Chronic Pain Syndrome referred to by the medical practitioners has a physical explanation and that, as a result, it is a consequence of the injury suffered by the plaintiff in May 2007.
Consequences to the Plaintiff
Sleep
83 The plaintiff, in her affidavit dated 12 March 2014, states:
“My sleep is not good. Pain makes it hard to get to sleep and then wakes me up a number of times each night. I would very rarely wake up feeling refreshed. My constant tiredness only makes it even harder to deal with the pain and limitations that I have.”[67]
[67]PCB 24
84 In a later affidavit dated 29 February 2016, the plaintiff states:
“My sleep is still not good. I wake up at least a couple of times every night due to pain. It is then very hard to get back to sleep. This leaves me feeling tired and irritable most days.”[68]
[68]PCB 27
85 The plaintiff has consistently complained to her medical practitioners about the impact of the pain on her ability to sleep.[69] In her evidence, the plaintiff, on two separate occasions, confirmed her evidence that her sleep was interrupted as a result of the pain she was suffering as a result of the injury to her thoracolumbar spine or back.[70]
[69]PCB 58
[70]T23 and T32
86 I find that the inability of the plaintiff to get proper sleep, despite having medication to assist her to do so, is a very considerable consequence for the plaintiff.
Pain
87 The plaintiff, in the course of her evidence, gave evidence about the pain. She describes the pain to her lower back as being the more severe.[71] She stated that, on a scale of one to ten, the worst pain she gets is ten, and that this occurs every day.[72] I accept the plaintiff’s evidence in this regard and find that this is a very considerable consequence for her. The fact that the plaintiff has to bear unrelenting and consistent pain of such level is a very considerable consequence for her.
[71]T31
[72]T32
Medication
88 The plaintiff has consistently taken painkilling medication from the time of her first injury in May 2007. The medication has varied over the period of time and her current medication program is Targin, Lyrica and Mersyndol Forte.[73]
[73]T31-35 and PCB 29, paragraph 15 and PCB 32
89 I find that the plaintiff’s necessity to take this level of medication to ameliorate the pain symptoms is a very considerable consequence for her.
Ongoing treatment
90 The plaintiff also accesses ongoing treatment from a chiropractor on an occasional basis. In her evidence, she stated that she received limited pain relief from that treatment, but continued to use that treatment to try and assist in the control of her pain symptoms. She also is under the care and guidance of a general practitioner to deal with her pain symptoms.
91 I accept that the necessity for the plaintiff to receive ongoing treatment is a very considerable consequence for her.
Work
92 I accept that the plaintiff has lost her ability to perform any suitable employment as a result of the injury to her thoracolumbar spine. The plaintiff had a consistent history of employment up until the time of her injury in May 2007. Even after her initial injury, she attempted to return to work and did so on a limited basis. After the 2010 injury, she also returned to work again on the same limited basis. I accept that the plaintiff is someone who values the ability to work and to contribute to society through her work. The fact that she has lost her ability to work in a meaningful way has been a very considerable consequence for her, not just in an economic sense, but in a self-worth sense. In her evidence, the plaintiff put this simply, “work was my life”.[74]
[74]T36
93 In conclusion, I find that the combination of all the consequences listed above amount to satisfying the narrative test under the legislation and that these consequences are at least very considerable for the plaintiff. The consequences are for the foreseeable future.
Loss of earning capacity
94 In order to establish that the plaintiff be given leave to bring proceedings in respect of loss of earning capacity, she must establish that:
(a)at the date of the hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b)after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
95 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i)“without injury” earnings; and
(ii)“after injury” earnings.
96 The former must be calculated by reference to the six-year period specified in s134AB(38)(f) of the Act. These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
97 The “without injury” figure of gross income per week varied between $400[75] and $370.[76]
[75]PCB 95
[76]PCB 98
98 The onus of proof is upon the plaintiff to establish that she has suffered greater than a 40 per cent loss of her “without injury” earning capacity.
99 Based on the medical reports previously referred to in these reasons for judgment, I accept that the plaintiff has no work capacity for suitable employment due to the injuries she received in her accident on 1 May 2007. I accept and prefer the opinions of Mr Kossmann, Dr Sutcliffe and Dr Pai, in assessing the plaintiff’s capacity or, more accurately, incapacity, for being involved in suitable employment. I accept that the plaintiff’s incapacity is for the foreseeable future, as set out by the medical opinions.
Conclusion
100 In reaching that conclusion, I accept that the plaintiff has not worked her normal duties since May 2007.
101 The plaintiff returned to work on alternative duties in mid-June 2007.[77] The plaintiff described her duties as respite work. The plaintiff continued her respite work for 26 hours per week.[78] The plaintiff described her respite work as follows:
[77]PCB 21
[78]T8
Q:“And you say that during that period you never returned back to normal duties?---
A:No normal duties, no.
Q:What restrictions did you have on you?---
A:Weight, what I could life [scil lift]. I think it was three kilos. I did a lot of respite.
Q:By that do you - - -.”
HIS HONOUR:
Q:“What does that mean when you say you did a lot of respite?---
A:Respite is you’re not doing a lot of heavy lifting, or you’re just actually with clients to talk to them and – you know, just be with them, listen to them, sit with them sometimes.”[79]
[79]T7
102 The plaintiff was then re-injured in the second incident on 27 May 2010. She was off work completely for approximately six weeks.[80] She returned to alternative duties involving the respite work until she was unable to continue with work and eventually ceased work near the end of 2010.[81]
[80]PCB 22
[81]T36 and PCB 22
103 In 2012, the plaintiff resumed part-time work in a café. Her work involved making coffee. She worked two hours on three days a week. In her evidence, the plaintiff said that after a shift at the café, she would go home and lie down due to the pain and symptoms in her back.[82] She stated that she only lasted two weeks in this job, which was through a friend.[83] The plaintiff has not worked since the coffee-making job.
[82]T37
[83]T21
104 I accept that the plaintiff has tried to return to her work after she was injured at work. After her 2007 injury, she was able to maintain her light duties job, that she described as “respite”. After her second work incident in 2010, the plaintiff again returned to this light “respite” work. Unfortunately, she was only able to do this work for approximately six months before she was unable to continue due to the pain and symptoms from her back. Despite her pain and disability, the plaintiff had another attempt at part-time work in 2012 at a friend’s café. This job was too much for her to sustain and she only completed two weeks of the part-time work.
105 The efforts by the plaintiff indicate and establish that she has made genuine efforts to return to work. Her return-to-work attempts have been thwarted by the severity and the persistence of the pain and symptoms, which started from the May 2007 injury. The course of medical treatment and the plaintiff’s attempts to return to work are consistent with the 2007 work accident being the initiating and continuing cause of the plaintiff’s inability to return to work.
106 I accept that the plaintiff has displayed a level of stoicism in her return-to-work attempts. While some of the medical examiners refer to the psychological factors impacting on the plaintiff’s condition, I do not accept the plaintiff is exaggerating her disability. I have had the opportunity to see and hear the plaintiff giving her evidence and accept that she is a truthful and honest witness.
107 The plaintiff was cross-examined about working in her husband’s business. The basis for the questioning was the plaintiff’s taxation returns for the years ending 30 June 2013 – $44,023, and 30 June 2014 – $57,455. When answering questions about her husband’s work, the plaintiff stated “I don’t do anything for the business”. The plaintiff’s evidence is that she was on her husband’s business books, but that she did not do any work in that business.[84] I accept the plaintiff does not do any work, either administrative or otherwise, in her husband’s forklift business. It is clear the plaintiff is paid by the business for some other reason, perhaps income splitting. I do not need to decide that issue.
[84]T18-21
108 I accept the plaintiff cannot perform any paid work due to the level of her pain and the medication she requires to assist in the control of that pain. The plaintiff’s ability to engage in paid employment has been totally destroyed by the injury to her spine, which occurred on 1 May 2007.
109 I grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering and loss of earning capacity as a result of the injuries she suffered in the course of her employment on 1 May 2007.
110 I will hear the parties on costs.
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