Castellano v Victorian WorkCover Authority
[2015] VCC 1110
•28 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-00809
| MARIA CASTELLANO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 June 2015 | |
DATE OF JUDGMENT: | 28 August 2015 | |
CASE MAY BE CITED AS: | Castellano v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1110 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – pain and suffering only – whether cervical spine aggravation was a compensable injury – aggravation of pre-existing lumbar and cervical spine injuries – whether aggravation resulted in serious injury consequences – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Transport Accident Commission v Zepic [2013] VSCA 232; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz (2012) 34 VR 309; Zivolicv Hella Australia Pty Ltd [2007] VSCA 142; Meadows v Lichmore Pty Ltd [2013] VSCA 201; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Ajzensztat | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr C A Miles | Lander & Rogers |
HER 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 Lexatonia Tiles (Vic) Pty Ltd (“the employer”) on 14 November 2008.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The application is brought pursuant to clause (a) of the definition of “serious injury” as that term is defined in s134AB(37) of the Act. The claim was originally also brought under clause (c), but that part of the application was abandoned by Counsel for the plaintiff in opening.[1]
[1]Plaintiff’s Court Book (“PCB”) 6-7; Transcript (“T”) 2
4 The impairment of body function relied upon is function of the spine, and the injury is said to be in the form of an aggravation of spinal spondylosis in both the lumbar and cervical spines.[2]
[2]T2-3
5 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined.
6 In addition, both parties relied upon medical reports and other materials which were contained within Court Books tendered in evidence.[3] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
[3]PCB and Defendant’s Court Book (“DCB”)
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[4]
[4]Section 134AB(19)(a) of the Act
8 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act which reads:
“‘Serious injury’ means –
(a) Permanent serious impairment or loss of a body function … .”
9 As referred to above, the part of the body said to be impaired for the purposes of paragraph (a) is the spine, including the lumbar and cervical spine. There was no dispute that it is permissible to aggregate injury to two different sections of the spine.[5]
[5]Transport Accident Commission v Zepic [2013] VSCA 232 at [11] and [138]-[139]
10To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by her arose out of or due to the nature of her employment with the employer on or after 24 October 1999;[6]
[6]Section 134AB(1) of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622
(b) “the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[7]
[7]Barwon Spinners Pty Ltd & OrsvPodolak (ibid) at [33]
(c) the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[8]
[8]Section 134AB(38)(b) and (c) of the Act
11The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
12In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
13In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[9]
[9]Section 134AB(38)(h) of the Act
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[10]
[10]Section 134AB(38)(j) of the Act
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[11]
[11] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at [23]-[26]
14The question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[12]
[12]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at [67]
The Plaintiff’s background
15The plaintiff was born in Naples, Italy, in October 1979. She is now thirty-five years of age. She came to Australia with her parents when she was three years of age. At ten years of age, the family returned to live in Luca, Italy. She completed her secondary school studies there, but found she had to re-learn Italian. Consequently, school was initially a struggle, although she was eventually able to do well and obtained a Diploma of Languages. She is able to speak Italian, Spanish, French and English.
16Both her childhood and adolescence were unremarkable. In approximately 2003, she returned, aged twenty-four years, to live in Australia with her family. This transition was difficult for her. She did not want to live in Australia but did not want to leave her family. She suffered from anxiety while she lived in Italy and continued to suffer from that condition when she moved to Australia.
17The plaintiff is the eldest of three children. She has two younger brothers. Her father is sixty years of age and works as a coffeemaker. Her mother is fifty-seven years of age and is a housewife. Her parents separated for a short time in about 2010,[13] but have resumed their relationship and still live together. The plaintiff is unmarried and has no children. She lives with her parents. She has been in a relationship with a young man for about the past 12 months, which she describes as “going pretty well”.[14]
[13]T30, L7-8
[14]T46, L14-24
18Prior to starting her employment with the employer, the plaintiff had experience working in customer service in Italy, having been the retail manager in a clothing shop for three years, worked in real estate for two years, as a hotel receptionist for one year and in a solarium for six to seven months.
19Upon her return to Australia in about 2003, the plaintiff was unemployed. She did not work in Australia prior to starting with the employer in September 2007.[15] She began learning English to improve her employment prospects.[16] On 19 September 2007, the plaintiff commenced employment as a sales consultant, selling tiles with the employer.
[15]T10-11
[16]T12, L6-14
The incident
20In her affidavit sworn 26 September 2012 (“the first affidavit”), the plaintiff described the fall at work (“the incident”) and its immediate aftermath in the following terms:
“11.… I was serving a customer. I was walking on a tiled surface. The tiled surface was wet. I slipped and fell backwards landing heavily on my backside. I struck my head and left arm. Immediately after the incident I was in extreme pain. I struggled to stand and to walk.”[17]
[17]PCB 15
21In her Claim Form dated 20 November 2008,[18] the plaintiff described the incident in the following terms:
[18]PCB 147
“I slipped on the floor and I knocked my head, back and my arm. I felt my back crack and I was in extreme pain.”
The Plaintiff’s evidence
22The plaintiff swore two affidavits, the first on 26 June 2009 and the second on 12 June 2015 (“the second affidavit”). In summary, the pain and suffering consequences which the plaintiff said she experiences are as follows:
(a) she struggles to cope with the ongoing fluctuating, severe and disabling pain in her back and right leg.[19] She is never free of a level of low back pain.[20] She has a very vulnerable back. Since the incident, she has been susceptible to sudden, unexpected episodes of pain, which at time can be very acute;[21]
[19]Paragraph 14 of the first affidavit
[20]Paragraph 24 of the first affidavit; paragraph 3 of the second affidavit
[21]Paragraph 34 of the first affidavit
(b) she experiences pain in her right foot and episodes of numbness into the big toe of her right foot.[22] She experiences aching pain across the back of both legs. There is a feeling of “heaviness”. The symptoms in the left leg are not as bad as the right leg.[23] The pain and symptoms she experiences are unpredictable, as is the severity of the symptoms;[24]
[22]Paragraph 15 of the first affidavit
[23]Paragraph 25 of the first affidavit; paragraph 2 of the second affidavit
[24]Paragraph 23 of the first affidavit; paragraph 6 of the second affidavit
(c) she experiences neck pain, with pain into the right shoulder and the right side of the head.[25] She continues to have headaches and from time to time, episodes of dizziness, but they are not as frequent as they once were.[26] She experiences aching pain across her neck.[27] She is never free of neck pain;[28]
[25]Paragraph 18 of the first affidavit; paragraphs 2 and 6 of the second affidavit
[26]Paragraph 8 of the second affidavit
[27]Paragraph 25 of the first affidavit
[28]Paragraph 24 of the first affidavit; paragraph 6 of the second affidavit
(d) the severity of the discomfort and the pain in her neck is made worse by activities such as turning, twisting and flexing movements, or when using her right arm and shoulder doing forceful or sustained movements of her right arm;[29] for example when reaching at or above shoulder height or performing vigorous, forceful repetitive movements of the right arm and shoulder at or above shoulder/head height.[30] Movements of her neck are limited and her neck is often stiff. She is unable to move and turn her neck fully;[31]
[29]Paragraph 9 of the second affidavit
[30]Paragraph 9 of the second affidavit
[31]Paragraph 7 of the second affidavit
(e) her ability to perform many day-to-day tasks is very limited. She finds it very difficult to perform tasks involving twisting, bending, stretching or flexing of her back.[32] Initially, she remained off work.[33] She has been unable to return to her work with the employer.[34] She has difficulty lifting and carrying moderate weights, getting into and out of a motor vehicle and driving for extended periods;[35]
[32]Paragraph 17 of the first affidavit
[33]Paragraph 17 of the first affidavit
[34]Paragraph 22 of the first affidavit
[35]Paragraph 21 of the first affidavit
(f) the pain she experiences is made worse by activities.[36] Many work tasks, and many domestic household tasks, are difficult for her; for example completing laundry and cleaning.[37] She must now be more cautious in her general movements so as to avoid provoking acute episodes of pain;[38]
[36]Paragraph 24 of the first affidavit
[37]Paragraph 5 of the second affidavit
[38]Paragraph 34 of the first affidavit
(g) she returned to full-time work in March 2012, as a pharmacy assistant. She was able to cope with this work fairly well, because the nature of the products sold meant that it was not as physically demanding as that which she did with the employer. She was also able to avoid prolonged standing and walking, to take breaks, to sit and to vary her tasks in that job;[39]
[39]Paragraph 30 of the first affidavit
(h) she is presently working full-time, five days per week, as a dispensary technician at Chemist Warehouse in Greensborough.[40] In her present job, she stands for long periods of time. Often, she performs tasks involving bending, reaching and stretching; that is, tasks which involve movement and use of her back. When doing her normal work, her back becomes painful, particularly as the day goes by.[41] From time to time, she has acute flare-ups of back pain and neck pain which are unexpected, unpredictable and which she struggles to tolerate. As a result, she tries to avoid lifting and carrying moderate/heavy weights as much as possible and tries to avoid tasks or activities which place undue strain upon her back. Often avoiding such tasks is not possible.[42] She enjoys her work very much. She enjoys interacting with customers;[43]
[40]Paragraph 10 of the second affidavit
[41]Paragraph 16 of the second affidavit
[42]Paragraph 17 of the second affidavit
[43]Paragraph 17 of the second affidavit
(i) she manages the problems and pain that she has with her neck and back by avoiding activities which make the pain worse and also with rest and exercise, including gym classes, usually two to three times a week, doing an exercise program supervised by a trainer and by using medications.[44] She tries to be as active as possible within the limits of neck pain and back pain;[45]
[44]Paragraph 18 of the second affidavit
[45]Paragraph 22 of the second affidavit
(j) each week[46] she uses medications including Panadeine Forte, Panadeine,[47] Nurofen,[48] Nurofen Plus, Voltaren and Temazepam.[49] She is unable to get by without medications.[50] She has been attending a physiotherapist. Despite this treatment, she is unable to gain any ongoing sustained improvement in either her neck or back.[51] The frequency with which she uses medications varies according to the severity of the symptoms she experiences. The symptoms are unpredictable. Generally, things are much worse in cold weather;[52]
[46]Paragraph 26 of the first affidavit
[47]Paragraph 26 of the first affidavit
[48]Paragraph 15 of the first affidavit
[49]Paragraph 22 of the first affidavit
[50]Paragraph 26 of the first affidavit
[51]Paragraphs 15 and 23 of the first affidavit
[52]Paragraph 26 of the first affidavit
(k) over the last twelve months, in addition to the medications listed above, she has recently begun using Mersyndol Forte, OxyNorm and Panadeine Extra. She uses one or more of the listed medications regularly, each week, for pain.[53] She has tried to get by without medications but has been unable to cope with the ongoing, unpredictable discomfort and pain in her neck and back. She pays for her medications.[54]
[53]Paragraph 20 of the second affidavit
[54]Paragraph 24 of the second affidavit
23In addition to the matters set out above, under cross-examination, the plaintiff gave the following further evidence in relation to this matter:
(a) regarding the neck pain, she agreed that it really came on about six months after the incident.[55] She said that it was there after two to three months, but it was not until later that she needed to see a doctor about it.[56] She accepted that she told Dr Davison that the neck pain came on five or six months after the incident;[57]
[55]T32, L9-11
[56]T32-33; T58-59
[57]T33-34
(b) she agreed that she is able to travel for long periods on a plane, in order to go back to Italy for a holiday, and has done this on more than one occasion.[58] She said that the plane trip was the worst part of the holiday, “having to sit and stand, sit and stand for the whole trip”;[59]
[58]T36-38;
[59]T37, L28-31
(c) she agreed that in the 2008 financial year, she earned $26,442 (noting that the earnings were truncated that year as the plaintiff only worked from 19 November 2007 to 30 June 2008), that in the 2013 financial year, she earned $45,505 and in the 2014 financial year, she earned $44,740;[60]
[60]T39-40
(d) she is able to cope fairly well with her current pharmacy work.[61] She said that she is not pain free, but she has learned how to cope with the pain, because she likes her job and wants to keep it.[62] She said that she is coping well with the job even though occasionally the tasks place some strain on her;[63]
T40; see also the plaintiff’s first affidavit at PCB 19, paragraph 30, and the plaintiff’s second affidavit at PCB 26, paragraph 17
[62]T40-41
[63]T41
(e) she said that prior to the incident, she was taking medication very short term, “not ongoing like now”.[64] She gets prescription medication if she needs it from her general practitioner (who gives her repeats), but mostly she takes over-the-counter medication;
[64]T43
(f) she now takes medication every day, alternating the stronger medication with the lower dose medication. With anti-inflammatories, she voluntarily tries to limit the how much she takes;
(g) she had to go to the hospital for an acute flare up of her spinal pain one night before Christmas in 2014. On that occasion she was prescribed OxyNorm for her pain;[65]
[65]T45
(h) she takes the OxyNorm “sometimes”,[66] but she knows that she cannot take it when she is going to drive or is at work, so she voluntarily limits her intake of that medication. She is still on the same box of OxyNorm as she was initially given at hospital;[67]
[66]T46
[67]T43-46
(i) her current relationship is a sexual one and is going well;[68]
[68]T46
(j) she goes to the gym at Mill Park regularly and finds it helpful;[69]
[69]T46
(k) she can drive; she can go shopping;[70] she can use public transport easily[71] and she walks normally;[72]
[70]T56
[71]T57
[72]T47
(l) she can travel overseas when necessary;[73]
[73]T57
(m) her mother does all the housework at home. When her mother was ill, she took on those duties, although she had some help and was taught how to do the work in a way that was not going to hurt her back;[74]
[74]T50; consistent with this, the plaintiff told Mr Monteleone, psychologist, that she is restricted in most activities for daily living, and that while assisting her mother with housework when her mother was ill, she suffered extreme pain in her low-back, neck and shoulder: T47, 50; PCB 56
(n) a couple of years ago, she moved out of home for eighteen months. She was able to cope with living by herself. She moved back home because she missed her family and in order to save money;[75]
[75]T57
(o) she prefers to stay at home now, because she is older. It is not that she cannot do the things she used to do.[76] She is still fairly socially active.[77]
[76]T51
[77]T54
(p) She can wear heels when she gets dressed up to go out,[78] but has to “handle” the pain, by, for example sitting down:[79] “that’s why I prefer just to be at home because I know that it’s easier for me”;[80]
[78]T56
[79]T62
[80]T62, L9-19
(q) she has lived with her mother, father and two brothers for nearly the whole time she has been in Australia. They would be in a position to observe any changes in her life caused by the incident. They have not given affidavits “because they were never asked”;[81]
[81]T52
(r) prior to the incident, her back pain was just “ordinary back pain which, you know, you can get - you know, in certain stages”. Similarly, prior to the incident, she never experienced the sort of neck pain she gets now, which she “struggles” to handle. Her life is not pain free anymore;[82]
[82]T59 L4-15
(s) the symptoms in her low back and legs are there “all the time now” and they go up and down in severity;[83]
[83]T60
(t) she also has symptoms in her neck and is starting to get the same heaviness and soreness in both her arms as she has in her legs. She struggles to hold things and her arms get tired very easily;[84]
[84]T61
(u) she had pain in her right leg and neck pain which referred into her arms prior to the incident. That pain got worse after the incident.[85]
[85]T62-63
The issues
The Plaintiff’s credit
24No serious attack was made on the plaintiff’s credit during the hearing, although on a number of occasions, Counsel for the defendant put matters to the plaintiff during cross-examination, which called into question the accuracy of the matters which she had reported to various doctors, and some matters which were included in her affidavit evidence. These included:
(a) information gathered from her Facebook page, which threw doubt on the extent of the present restriction on her social life;[86]
[86]T55-56; see also DCB 34
(b) information given to a doctor contradicting an assertion by her in her first affidavit that the relationship she was in at the time of the incident, had broken up by reason of her response to her symptoms;[87] and
[87]T20; see also DCB 34
(c) a suggestion that she began work at Brunetti's in 2011 because her weekly payments had ceased in 2010, rather than because of any improvement in her work capacity.[88]
[88]T35-36; see also DCB 20
25In relation to each of these matters, the plaintiff was able to provide cogent and convincing evidence and explanation.
26Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was a co-operative witness, who appeared to be doing her best to give accurate responses to the questions asked of her. During cross-examination, she gave her evidence openly and without embellishment, even though on occasion, her answers were contrary to her interests. For example when asked about her ability to travel overseas on a plane, she agreed that she was able to do so, and had done this on more than one occasion since the incident.[89] When asked about the reasons why she had moved back home to live with her parents, the plaintiff admitted that she missed her family and wanted to save money.[90]
[89]T36-38
[90]T57
27Furthermore, I find that the plaintiff's account of events has remained fairly consistent throughout the period during which she has seen her treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
28Finally, it is apparent from the index in the Defendant’s Court Book that surveillance of the plaintiff was carried out and film taken of the plaintiff’s activities during that time. As the film was not put to the plaintiff during cross-examination, it is open to conclude that it would not have advanced the defendant’s case, a finding I make.
29After a consideration of all the evidence and in particular, the evidence of the plaintiff, I consider that she was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that she was attempting to mislead the Court, or exaggerate her symptoms. I also formed the view that the plaintiff is somewhat stoic in relation to her condition. For instance, at times she has foregone taking strong mediation in order to avoid forming a dependence upon it, and has continued working even though she is sometimes unable to avoid activities which cause her pain, because she values her job, and wishes to keep it.
Compensable injury
30The details and occurrence of the incident are not in dispute.
31Similarly, Counsel for the defendant informed the Court that there was no issue that the plaintiff had suffered a compensable aggravation of her pre-existing lumbar spine injury in the incident.
32The critical issue in relation to the lumbar spine was, therefore, whether any consequences of the aggravation satisfied the narrative test[91] – in this sense, Counsel described the matter as essentially a “range case”.[92]
[91]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd (t/a Arnold Webbing Australia) v Filipowicz (2012) 34 VR 309
[92]T7
33However, Counsel for the defendant disputed that the plaintiff had a compensable aggravation of her pre-existing cervical spine injury in the incident. Thus, the critical issue in relation to the cervical spine is two-fold, viz:
(a) did the incident aggravate the plaintiff’s pre-existing cervical spine injury?
(b) if yes to the question above, do the consequences of the aggravation of the plaintiff’s cervical spine (if any) either alone, or in combination with the consequences (if any) of the aggravation of the plaintiff’s lumbar spine injury as referred to above, satisfy the narrative test?
34Lastly, Counsel for the defendant submitted that even though the Court was no longer dealing with an application under clause (c), it remained for the plaintiff to “disentangle” the psychological consequences of her injury from the physical consequences.
Is the Plaintiff’s cervical spine injury a compensable injury for the purpose of the Act?
35As set out above, the defendant disputes the claim that there is a compensable injury to the plaintiff’s cervical spine.
36The Claim for Compensation relating to the injury to the cervical spine was signed by the plaintiff on 13 January 2010,[93] and was rejected by the defendant by letter dated 8 April 2010.[94] The plaintiff did not appeal this decision.[95]
[93]DCB 44-45
[94]PCB 151-154
[95]T34-35
37The defendant’s submission is that the plaintiff’s present cervical spine symptoms did not arise until five to six months after the incident and coincided with the onset of anxiety and depression. Thus, one could not be satisfied to the requisite standard that the aggravation of the plaintiff’s cervical spine injury either:
(a) had a substantial organic basis; or
(b) was causally related to the incident.
38For the reasons that appear below, an analysis of all of the medical evidence does not bear out the defendant’s submission.
Substantial organic basis
39Each of the plaintiff’s treaters gave opinions that the aggravation to the plaintiff’s cervical spine injury was organic in origin. For instance:
(a) on 7 July 2010, Dr Portelli, general practitioner, reported that a CT scan of the plaintiff’s cervical spine taken after the incident, showed “some disc space narrowing at the C5/6 level with some straightening of the usual cervical lordosis”. He said that “these findings are indicative of an injury to her cervical spine …”;[96]
[96]PCB 30; this observation is supported by an MRI scan conducted on 23 April 2010 which also noted disc space narrowing at the C5-6 level
(b) on 4 October 2010, Mr O’Brien, neurosurgeon, reported “bilateral paraspinal muscle spasm in the cervical region with secondary cervicogenic headaches”;[97]
[97]PCB 46; this opinion was confirmed in Mr O’Brien’s reports dated 9 July 2014 (PCB 49) and 27 November 2014 (PCB 50)
(c) on 27 November 2014, Mr O’Brien described the fact that an MRI scan of the plaintiff’s cervical spine taken on 27 March 2014, demonstrated “cervical spondylosis at C4/5 on the left and C5/6 bilaterally”;[98]
[98]PCB 51
(d) on 21 June 2015, Dr Karlov, consultant physician, diagnosed the plaintiff as suffering, inter alia, from “bilateral foraminal stenosis at C5/6 and on the left at C4/5, which are moderate in severity”.[99] In his opinion:
[99]PCB 103B; Dr Karlov provided a report dated 21 June 2015, which was added, with leave, into the Plaintiff’s Court Book on the morning of the first day of hearing
“… [t]he sort of lesions she has in her cervical and lumbar spine are consistent with an injury. They are mechanical problems which are capable of being caused by or aggravated by the nature of her injuries and therefore consistent with the stated cause.”
40Professor Bittar, neurological surgeon, the plaintiff’s medico-legal expert, noted that an MRI scan of the cervical spine performed on 16 July 2010 demonstrated “slight straightening of the normal cervical lordosis with spondylitic changes at C4/5 and C5/6”, and that there were “osteophytes at C4/5, C5/6 and C6/7 narrowing the intervertebral foraminae”.[100] In relation to her neck, he diagnosed the plaintiff as suffering from “aggravation of cervical spondylosis”.[101]
[100] PCB 144
[101] PCB 145
41Several of the defendant’s medico-legal experts gave evidence relevant to the issue of whether there was an organic basis to the plaintiff’s cervical spine symptoms, viz:
(a) On 6 April 2010, Mr Dooley, orthopaedic surgeon, examined the plaintiff’s cervico-thoracic spine, noting that “Examination revealed a full painless range of movement present in her neck, without any evidence of muscle spasm…”.[102] This led to his conclusion that the plaintiff had “not sustained any physical injury to her cervico-thoracic spine” during the course of her employment with the employer. I reject Mr Dooley’s conclusion for the following reasons:
[102]PCB 98
(i) the plaintiff’s evidence is that she suffers from pain that fluctuates in intensity. A finding of unrestricted movement in the plaintiff’s cervico-thoracic spine on a single occasion is not inconsistent with other expert opinion that the plaintiff’s condition has a substantial organic basis;
(ii) Mr Dooley’s opinion was based in part, upon the inaccurate history given to him that the plaintiff’s neck pain and cervicogenic headaches did not “come on” until early 2009, and coincided with the “development” of anxiety and depression;[103]
[103]PCB 99
(iii) in fact, the plaintiff’s evidence is that the neck pain was always present, but had been overshadowed by the severity of the low-back pain following the incident. In addition, the evidence demonstrates that the earliest reports made by the plaintiff include the fact that she struck her head as she fell;
(iv) similarly, the evidence clearly indicated that the plaintiff’s anxiety and depression pre-dated her report of cervical spine symptoms in early 2009;
(b) On 11 March 2010,[104] Dr Rose, psychiatrist, considered that the plaintiff had a depressive reaction to her back injury and pain arising out of the back injury. However, in his opinion, there was “no evidence of abnormal illness behaviour or pain preoccupation. Ms Castellano was merely sad and upset by her injury”;[105]
[104]PCB 82
[105]PCB 81
(c) On 9 March 2010, the plaintiff was seen by Dr Kennedy, psychologist. Dr Kennedy provided a report dated 24 March 2010, which diagnosed the plaintiff as suffering from an Adjustment Disorder with Depressed Mood, “secondary to her physical state and its effects”.[106] Dr Kennedy did not diagnose the plaintiff as suffering from abnormal illness behaviour or Chronic Pain Syndrome;
[106]PCB 92
(d) Dr Jager, psychiatrist, conducted an examination of the plaintiff on 12 May 2009. In his report dated 2 June 2009, under the headings “Mental State Examination” and “Summary and Diagnosis”,[107] Dr Jager considered that the plaintiff’s psychiatric symptoms were largely due to “psychosomatic factors” and that the condition “represents an exacerbation of the pre-existing Dysthymic Disorder,” he did not exclude the possibility of there being an organic basis for the symptoms which she suffered, and specifically suggested that there was a “need to obtain an opinion from an orthopaedic surgeon as to whether there is any ongoing physical injury;”
[107]PCB 68-69
(e) Dr Davison, consultant occupational physician, examined the plaintiff on one occasion, on 30 September 2010. The plaintiff told him that her neck problems came on “after five or six months” and that she began to experience recurrent headaches, described by her as “migraine”. In his opinion, it was clear from the imaging, that the plaintiff’s symptoms “cannot be explained by any structural abnormality in the cervical spine”. It was his view that the symptoms are consistent with a diagnosis of “so called ‘fibromyalgia’. This condition does not have a traumatic aetiology but rather has its origins in psychosocial factors.”[108] This gave rise to his conclusion that the plaintiff’s symptoms were psychological in origin. Dr Davison’s opinion is based on the erroneous conclusion that the July 2010 MRI scan showed no physical changes to the plaintiff’s cervical spine which could explain her symptoms and/or which were related to the incident. I reject this opinion for the following reasons:
[108]DCB 5
(i) while no medical opinion was put into evidence which specifically addressed the significance of the pre and post-incident imaging of the cervical spine, the court books placed before the Court contain imaging of the plaintiff’s cervical spine performed in January 2008, which reported that no abnormality was detected;
(ii) by contrast, numerous doctors have commented on the post-incident imaging of the plaintiff’s cervical spine, noting that it shows significant pathology, including posterior annular bulging at the C5-6 level and foraminal encroachment at the C5 level on the left side, and bilaterally at C6 and C7;[109]
[109]See reports of Mr O’Brien and Professor Bittar
(iii) this comparison was not made by Dr Davison. Thus, I reject his opinion that “there is no evidence to suggest the worker’s head and neck symptoms are related in any way to the fall”;[110]
[110]DCB 6
(f) Dr Fraser, rheumatologist, examined the plaintiff on 6 December 2010 and approximately 8 May 2015. In his opinion, there was not any ongoing work-related injury in this case. In his 2010 report, he said that the plaintiff:
“… may have sustained minor soft tissue injuries in the lumbosacral spine region as a result of the fall at work. Any such injuries should have long since resolved and the later onset of neck and shoulder girdle pain and the overreaction on physical examination suggests that non-organic factors of a psychosocial nature are largely responsible for her symptoms and signs. It is relevant to note that she is being treated for depression ... To the doubtful extent that there is an organically based low back pain, I consider that it is due to age-related degenerative changes secondary to constitutional factors.”
In his 2015 report, Dr Fraser’s previous conclusions were unchanged. In addition to his earlier conclusions, he opined that:
“… she is exaggerating her symptoms, signs and incapacity.”
Dr Fraser’s opinion suffers from the same omission as that contained in Dr Davison’s report, namely a failure to consider and compare the pre-incident imaging of the plaintiff’s cervical spine with that taken after the incident. For this reason, I also reject Dr Fraser’s opinion as to whether there is an organic basis for the plaintiff’s cervical spine injury;
(g) Dr Duke, psychiatrist, and Mr Wilks, psychologist, assessed the plaintiff in relation to her psychiatric and psychological states respectively. Mr Wilks was of the opinion that the plaintiff suffers from Mild Adjustment Disorder with Depressed Mood.[111] Dr Duke’s assessment was that the plaintiff initially suffered from an Adjustment Disorder with Depressed Mood, but that this has now resolved. In his opinion, the plaintiff presently suffers from a longstanding generalised Anxiety Disorder.[112] Neither doctor diagnosed the plaintiff as suffering from a Pain Disorder.
[111]DCB 21
[112]DCB 37-38
42To the extent that the medico-legal opinions in this case differ from the opinions provided by the plaintiff's treaters in relation to whether there is a substantial organic basis for the plaintiff’s cervical spine symptoms, I prefer the treaters’ opinions. This is for the following reasons:
(a) the majority of the treaters have had an ongoing relationship with the plaintiff over many years, and have therefore had an extended time to form an opinion as to the veracity and origin of her complaints, including by considering and comparing the pre and post-incident imaging. It is against this background that their conclusions were formed;
(b) the medico-legal experts who formed the view that the plaintiff's symptoms are non-organic in origin, based their conclusions either on a misunderstanding of the plaintiff's history, or a failure to analyse the difference between the pre and post-incident imaging of the plaintiff’s cervical spine, or both;[113]
[113]See for example the opinions of Mr Dooley and Dr Davison and Dr Fraser as discussed at paragraph 41(a) and (e)-(f) above
(c) there is, at best, a divergence of opinion between the doctors who have provided medico-legal opinions, with at least one concluding that there was “no evidence of abnormal illness behaviour or pain preoccupation”.[114]
[114]See the report of Dr Rose dated 11 March 2010 at PCB 82
43 For the reasons set out above, I find that the consequences of the aggravation to the plaintiff’s pre-existing cervical spine injury have a substantial organic basis.
Causal relationship between the incident and the aggravation to the cervical spine injury
44The plaintiff’s evidence is that the neck pain was always present, but had been overshadowed by the severity of the low-back pain following the incident.
45 The earliest reports made by the plaintiff in relation to the incident include the fact that the plaintiff struck her head as she fell. Mr O’Brien notes in his report dated 4 October 2010,[115] that the plaintiff complained to him of neck pain in February 2009. Further, in the same report, Mr O’Brien made the following observations regarding the relationship of the plaintiff’s neck symptomatology to the incident:
[115]PCB 46
“Thus the exact relationship of the onset of posterior cervical discomfort has been stated by Maria as occurring following her accident in 2008. I note the letters supporting this by Dr Portelli. When I saw Maria on the 10/02/09 she described posterior cervical headaches radiating up to the occipital. These were significantly contributing to her overall discomfort … Thus, she was certainly noting these symptoms at that time ... thus according to the history as given by her I can only state that she developed the cervical symptoms as a consequence of her injury in November 2008.”
46On the basis of the matters set out above, I am satisfied that the incident was a cause of the aggravation to the plaintiff’s pre-existing cervical spine injury.
Conclusion as to compensable injury
47After considering all of the evidence in relation to this matter, I am satisfied to the requisite standard, that as a result of the incident:
(a) the plaintiff suffered an aggravation to her pre-existing cervical spine injury, the consequences of which have a substantial organic basis;
(b) consequently, that the aggravation to the plaintiff’s pre-existing cervical spine injury is a compensable injury under the Act.
Is the compensable injury permanent for the purposes of the Act?
48Having considered the evidence from Professor Bittar,[116] Dr Portelli,[117] Mr Nye[118] and Dr Karlov,[119] I find that the plaintiff is likely to continue to suffer from cervical and lumbar spine-related pain and disability into the foreseeable future. Thus, I find that the injuries sustained by the plaintiff in the incident are permanent for the purpose of the Act.
[116]PCB 146
[117]PCB 32
[118]PCB 76
[119]PCB 103B
Is there a need to disentangle consequences suffered by the Plaintiff which are psychological in nature, from the physical consequences of her injuries?
49As set out above, Counsel for the defendant submitted that in this case, there was a need to disentangle the plaintiff’s physical consequences from the psychological consequences suffered by her.
50The plaintiff bears the burden of proof in any disentangling exercise which needs to be undertaken.
51Disentangling is not necessary in all cases where an injury contains both physical and psychiatric components. In some cases, the medical evidence may be enough to prove that the physical component of the injury is a serious injury, without the judge undertaking the task of “stripping away” the psychological or psychiatric components from the overall impairment.[120]
[120]Zivolic v Hella Australia Pty Ltd [2007] VSCA 142 at [19]-[20] per Redlich JA
52In determining whether there is a need to disentangle the symptoms suffered by the plaintiff, I must undertake a two-step process:[121]
[121]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at [21]-[22]
(a) first, I must determine whether there is a substantial organic basis for the injury. If there is, then subject to the degree of impairment, I may find that there is a serious injury without needing to undertake the disentangling exercise;
(b) if I am not, or cannot be satisfied that there is a substantial organic basis for the injury, then I must proceed to disentangle the physical and psychological components of the pain and suffering consequences to determine whether the pain and suffering consequences of the physical injury satisfy the narrative.
53It is admitted that the aggravation of the lumbar spine injury is a compensable injury. Implicit in that admission is that the physical consequences of that aggravation have a substantial organic basis.[122] Further, I have accepted that there is a substantial organic basis for the physical consequences of the aggravation to the plaintiff’s cervical spine injury.
[122]A fact which was accepted by the relevant medico-legal experts who provided reports to the defendant; see for example Mr Dooley, a medico-legal orthopaedic specialist, who examined the plaintiff for the defendant (see PCB 100), who specifically diagnosed “soft tissue injury to the lumbo-sacral spine, with aggravation of pre-existing lumbo-sacral spondylolisthesis at L5-S1 level”, which diagnosis was made by him on the basis of “Clinical history, physical examination, and reports of magnetic resonance imagings and CT scans of the lumbosacral spine”
54Applying the principles set out above, no further disentangling needs to be undertaken. The only matter left to decide is whether the physical consequences of the aggravations to the lumbar and/or cervical spine produce a sufficient degree of impairment to satisfy the narrative test.
Extent of the pre-existing lumbar and cervical spine injuries
55In this case, where the injuries relied upon are constituted by an aggravation, acceleration, exacerbation or deterioration of a pre-existing injury, the Court must be satisfied that the consequences of the aggravation, acceleration, exacerbation or deterioration would themselves amount to a “serious injury” to the plaintiff.[123]
[123]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (supra) at [31]-[34]; see also De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249 at [60]; Grech v Orica Australia Pty Ltd (2006) 14 VR 602 at [21] per Ashley JA; Petkovski v Galletti [1994] 1 VR 436
56It was common ground that prior to the date of the injury, the plaintiff suffered from pre-existing lumbar and cervical spine injuries.
57There was a dispute as to the relative severity of the pre-existing injuries.
58It was the plaintiff’s contention that the pre-existing injuries were relatively minor and not the subject of any significant or ongoing complaint, prior to the date of the incident.
59On the other hand, the defendant’s position was that the pre-existing lumbar and cervical spine injuries were, prior to the incident, causing the plaintiff significant pain and restriction and impacting upon her quality of life and ability to perform her job with the employer.
The medical evidence regarding the pre-existing lumbar spine injury
60Included in the Plaintiff’s Court Book were medical reports and medical imaging, which reveal the extent of the plaintiff’s lumbar spine injury, prior to the incident. The most relevant of these were as follows:
(a) in his report dated 29 May 2007, Mr O’Brien reviewed an MRI scan of the plaintiff’s lumbar spine which:
“… demonstrates evidence of a partial grade 1 anterolisthesis of L5/S1. In reality [the plaintiff] has an L4/5 central disc protrusion which appears to be the main focus of her pain although there could be contribution from the L5/S1”;[124]
[124]PCB 34
(b) in his report dated 3 April 2008, Mr O’Brien stated:
“She has significant ongoing pain passing down the posterolateral aspect of the right leg. She felt the physiotherapist gradually made her feel worse. She had been swimming three days per week although she has had to stop this. She believes that her current work of lifting heavy tiles intermittently is exacerbating her symptoms. She would like to decrease her hours and move on to part-time duties. I would like her to undergo an MRI scan of the lumbar spine … with additional assessment of her right hip. She is currently taking Mobic …”;[125]
[125]PCB 35
(c) in the report of an MRI scan conducted on 3 July 2008,[126] the following matters are noted:
[126]PCB 132
“Clinical notes:
Increasing back pain for a few months. Right lower back pain. ? sacroiliac joint arthritis. ? bursitis. ? facet joint arthropathy.
Findings:
MRI LUMBAR SPINE
…
There is grade [one] anterolisthesis of L5 over S1 vertebra, which causes mild uncovering of L5/S1 intervertebral disc. There is a defect in pars interarticularis bilaterally at L5.
There is loss of normal signal and disc height at L4/5 level, in keeping with disc desication.
…
Mild facet joint arthropathy is noted at L4/5 and L5/S1 levels.
L4/5: There is broad based disc bulge with a small posterocentral disc protrusion associated with annular disruption. It causes mild effacement of anterior thecal sac without any central canal stenosis. There is no foraminal stenosis at this level.
L5/S1: No central canal stenosis. The uncovered intervertebral disc due to grade one anterolisthesis causes contact of bilateral L5 nerve roots within the foramen. There is no other nerve root compression or impingement … .”
The medical evidence regarding the pre-existing cervical spine injury
61The following relevant matters appear in relation to the plaintiff’s pre-existing cervical spine injury in the notes of the plaintiff’s general practitioner and the reports of the medical imaging:
(a) 6 June 2006 (visit to Dr Portelli):[127]
[127]PCB 105
“History
Has neck pain, headaches and feels these are worse. Told in Italy to have CT scan.
Examination:
Musculosketal: decreased range of movement, localised tenderness cervical spine.”
(b) 11 December 2007 (report of CT scan of the cervical spine):[128]
[128]DCB 51
“Multislice studies were performed from C2 to T1.
There is no disc herniation seen throughout. There is no impression on the thecal sac. The regions of the neural exit foramina appear free of compromise and disc material. No uncovertebral degenerative joint changes are seen.”
(c) 3 January 2008: [129]
[129]PCB 108
“History:
CT scan neck – nad … .”
The Plaintiff’s evidence regarding the consequences of her pre-existing injuries
62In her first affidavit,[130] the plaintiff swore to the following matters in relation to her pre-existing lumbar spine injury:
[130]PCB 13-21
“31.In the past, and prior to the incident, I had experienced problems with my back. Since about 2006 I had experienced episodes of back pain.
…
33.Following the incident, the problems I had with my back were much worse and much more troublesome than anything I had experienced in the past.”
63The plaintiff did not depose in either of her affidavits to any consequences of her pre-existing cervical spine injury.
64In re-examination, the plaintiff gave the following evidence in relation to her pre-existing injuries:
(a) in relation to the lumbar spine: [131]
[131]T59, L4-10
Q.Are you able to say the extent to which, firstly, your back pain differs now from how it was before the fall?---
A.Before, it was just an ordinary back pain which ... you can get ... in certain stages. Now it’s a chronic ongoing pain ... my life is not pain-free anymore. That’s the main ... difference.
(b) in relation to the cervical spine: [132]
[132]T59, L11-15
Q.Are you able to make the same comment about the neck?---
A.I believe that I’ve never experienced ... a pain like this ... in my neck ... I still up to now struggle to handle it .... – it’s nowhere near what I was feeling before.”
65Under cross-examination, the plaintiff gave the following relevant evidence:
(a) that prior to the incident, her back pain was resolving, and was described by her as “just normal back pain”;[133]
[133]T10, L4-9; see also the report of Dr Nye at PCB 73
(b) she saw a physiotherapist, Mr Vinci, in July and August 2007. At that time, she had back pain, but it was not “ongoing or chronic”.[134] It was occasional. It was not stopping her from doing anything she had to do;[135]
[134]T15-16
[135]T16, L10-13
(c) she had a CT scan of her cervical spine at this time “to try to understand … what kind of problem or pain that was there”;[136]
[136]T16, L14-17
(d) in April 2007, she said to Mr O’Brien, neurosurgeon, that her pain was 7 or 8 out of 10 and it was “probably” pretty severe.[137] She was prescribed Mobic by Mr O’Brien and underwent an MRI scan at that time;[138]
[137]T17, L14-26
[138]T17, L1-13
(e) from “time to time” after she started work with the employer and prior to the incident, she had treatment for her back symptoms, including (in addition to Dr Portelli and Mr O’Brien) by an osteopath;[139]
[139]T18, L16-30
(f)she was getting some relief from that treatment: “it kind of worked because I wasn’t going there all the time and having to have medication and stuff like that”;[140]
[140]T19, L1-26
(g)she was coping “pretty well” with her work with the employer prior to the incident,[141] but agreed that she had told Mr O’Brien that she had significant ongoing pain passing down into her right leg, that the physiotherapist was gradually making her feel worse and she had to stop swimming because it was not helping her;[142]
[141]T20, L2-6
[142]T20, L8-22
(h)she was equivocal about whether she told Mr O’Brien that she thought that her work with the employer was intermittently exacerbating her lumbar spine symptoms and that she wanted to decrease her hours and move to part-time duties.[143] Under cross-examination, she said, in response to the question about whether lifting the heavy tiles was exacerbating her pre-existing back symptoms, “well they’re not light, if that makes a good answer” and she said she “did not remember” telling Mr O’Brien that she wanted to decrease her hours: “I didn’t want to go part time, not at all”;[144]
[143]T20-21
[144]T20-21
(i)she accepted that if that was what Mr O’Brien had recorded, that is probably what she told him at the time.[145] She said that she could not recall having trouble doing her normal retail work prior to the incident,[146] but acknowledged that as a result of that consultation, she was advised to, and did in fact undergo a further MRI scan of her lumbar spine, which was not the sort of procedure she would subject herself to if she did not think it was a necessary step;[147]
[145]T21, L8-11
[146]T21, L12-20
[147]T21, L21-31 – T22, L1-3
(j)she agreed that she told Professor Bittar that she had no pre-existing problems in her cervical spine. She said that she did not tell him, because the symptoms from that condition were “once in a blue moon”;[148]
[148]T22, L23-26
(k)she said that, to her memory, in Italy her neck pain was not worrying her: “I wasn’t taking any notice of it”;[149]
[149]T23, L18-19
(l)she acknowledged that she consulted Dr Portelli regarding her neck in June 2006, telling him that she had neck pains and headaches and that these were feeling “worse”,[150] that she had been advised to have a CT scan when she was in Italy, and that she was prepared to undergo a CT scan in relation to this problem when she saw Dr Portelli at this time;[151]
[150]T23, L10-12
[151]T23-24
(m)she agreed that when she saw Dr Portelli in June 2006, she “probably” had “pretty bad” neck pain. She also agreed that in November 2007, she consulted Dr Portelli again in relation to neck pain, and told him at that time that she had referred pain in her right arm. She was “possibly” still taking Mobic at this time;[152]
[152]T24-25
(n)she agreed that in January 2008, she was still having neck pain of sufficient severity to warrant undergoing a further CT scan;[153]
[153]T25, L12-17
(o)under cross-examination regarding her mental state, she agreed that she had suffered from anxiety for many years, even before she came to Australia.[154] She said that there was “no chance” that this had ever interfered with her ability to work in Italy.[155] She agreed that she had suffered from anxiety in Australia, even before the incident: “that’s just part of me;”[156]
[154]T26-27
[155]T26
[156]T29, L11-14
(p)she agreed that she continued to suffer from anxiety after the incident in November 2008. She said that difficulties with breathing and swallowing were “part of the anxiety”.[157] She said that she had suffered symptoms like these even back in Italy: “I believe, it’s just in my nature … it’s just the way that I am, I stress a bit too much sometimes and that’s just a sign of my body saying, just take it easy a little bit … .”
[157]T27, L1-4
Findings as to pre-existing injuries
66It is clear that there are some differences between the plaintiff’s evidence in relation to the extent of her pre-existing lumbar and cervical spine injuries prior to the incident, and the evidence of what the plaintiff told various doctors about those problems.
67I accept the evidence given by the plaintiff to the Court as to the consequences to her of those pre-existing injuries prior to the incident. I find that the variation in the accounts of the plaintiff’s symptoms and level of pain from time to time is consistent with, and indicative of, the intermittent nature of the symptoms then suffered by her.
68In relation to the plaintiff’s pre-existing lumbar spine injury, I find:
(a) that prior to the incident, the plaintiff suffered from a partial grade 1 anterolisthesis at the L5-S1, together with an L4-5 central disc protrusion or bulge;
(b) that her lumbar spine injury was intermittently symptomatic, but did not restrict the plaintiff’s work capacity in any significant or ongoing way;
(c) that in April 2008, the plaintiff had discussed with Mr O’Brien reducing her work hours to part time, because of intermittent exacerbation of the pre-existing lumbar spine injury caused by her employment, but that in the end, she did not take this step;
(d) that notwithstanding the heavy nature of her work when it involved lifting tiles, the plaintiff continued in unrestricted, full-time work from the date of the consultation in April 2008, up until the date of the incident in November 2008;
(e) that her lumbar spine injury required the plaintiff to take both prescription and over-the-counter medication on occasion;
69In relation to the plaintiff’s pre-existing cervical spine injury, I find:
(a) that imaging showed no significant pathology prior to the date of the injury;
(b) that the plaintiff nevertheless experienced neck symptomatology associated with muscle spasm, which also caused the plaintiff to experience headaches intermittently;[158]
[158]PCB 105, visit to Dr Baldi on 8 June 2006
(c) that the neck pain had been present prior to June 2006, and that she had been advised in Italy to have a CT scan because of her complaints in relation to it;
(d) that as at 29 November 2007, the plaintiff was experiencing not only intermittent neck symptoms, but pain her arms, which was suspected to be referred pain from the neck;
(e) that her cervical spine injury required the plaintiff to take medication on occasion; and
(f) that nevertheless, the plaintiff’s pre-existing cervical spine injury was not causing her such pain that it interfered with her enjoyment of life, or her ability to engage in unrestricted, full-time employment.
Pain and suffering consequences of the incident
Medical evidence – treating doctors
70Following the incident, the plaintiff continued to see her treating general practitioner, Dr Portelli. Dr Portelli most recently described the plaintiff’s symptoms following the incident in the following manner:
“In May 2013, she was referred for a further CT scan of her cervical and lumbar spine and the results are included in this report. … She was quite distressed by her pain and was also referred for counselling to a psychologist, Mr Francesco Ursini for post traumatic stress disorder. … Miss Castellano continues to suffer from headaches, neck and back pain along with significant anxiety and stress reaction. These symptoms are likely to persist long term and she will most likely suffer from fluctuation headaches, neck and back pains on a permanent basis.”[159]
[159]See report dated 11 June 2015, PCB 32
71The plaintiff has also been treated by Mr O’Brien, whose most recent opinion in relation to the plaintiff’s injuries is as follows:
“I have reviewed Maria on the 25th of June 2014. She has ongoing pain in the lower lumbar region, the pain can be quite significant radiating through the legs. This is particularly on bending forwards or getting up again. This is since the fall. This has been like this for about 1 year. The right leg and left leg both have referred symptoms. She also has pain in the neck with secondary headaches and increasing anxiety. The neck and lumbar region are about the same in regards to pain at the moment. She has been working as a pharmacist assistant. This requires her to do a lot of carrying. This has been for 2 and a half years. She did go to hospital 2 months ago because of significant pain….She is currently taking intermittent Valium and is also on Ostevit D. She feels that her condition is changing and the pain has gone from 7-10/10 in the lumbar region….I note her fall was in 2008. She certainly has secondary cervicogenic headaches and has increased sensitisation to low back pain.”[160]
[160]See report dated 9 July 2014, PCB 49; see also PCB 50
72In relation to the plaintiff’s work restrictions, Mr O’Brien stated: [161]
[161] PCB 40
“…she has a limited capacity to work. This would need to be in a carefully controlled environment no heavy lifting over 5kg. [162] I would recommend that she work between shoulder and waist height and refrain from any recurrent twisting, bending or straining…”
[162]In a report dated 9 June 2009, Mr O’Brien opined that she should not lift items over 7.5 kilograms in weight (PCB 44)
73In addition to her general practitioner and neurosurgeon, in 2010, the plaintiff has seen Nathan Elijah, an occupational therapist, who, in a report dated 20 December 2010,[163] noted that the plaintiff suffered from –
[163]PCB 103
“… neck and back pain. Straightening of the normal cervical lordosis, Grade 1 Spondylolisthesis, dual level disc bulges and facet joint arthropathy.”
74The plaintiff has recently been referred to Dr Karlov, a consultant physician.[164] The plaintiff told Dr Karlov that currently, her neck “was the main problem”, with the pain affecting both sides of the neck and shoulders and with paraesthesia in her upper limbs. She also said that she has pain in her lower back with paraesthesia involving both legs. Dr Karlov assessed the plaintiff as suffering (amongst other things) from:
[164]PCB 103A-103C
“A non neuro compressive L4/5 lumbar annulus lesion [and] bilateral foraminal stenosis at C5/6 and on the left at C4/5, which are moderate in severity.”
75In terms of relevant restrictions on the plaintiff’s capacity to work, Dr Karlov considered that:
“… given the low lumbar disc lesion she would not be capable of doing any lifting of more than five kilos. She would also have trouble sitting with her head over a bench or a table which would result in aggravation of her neck problems. She would be capable of gainful employment provided that [the] above restrictions are taken into account.”[165]
[165]Ex PCB 103B
76The plaintiff was also treated by Mr Monteleone, and Mr Francesco Ursino, both psychologists.
77In June 2010, Mr Monteleone noted that the plaintiff reported “strong, unbearable pain, difficulty with sitting walking and prolonged standing”.[166]
[166]PCB 62
78In June 2014, Mr Ursino noted that in addition to her psychological symptoms, she suffered from “chronic pain particularly upon waking in the morning, as well as neck problems”.[167]
[167]PCB 65
The medico-legal evidence
79I have already referred to the medico-legal opinion dated 25 March 2015 from Professor Bittar at paragraph 40 above. The history given to Professor Bittar indicated that the “lower back-related symptoms following the fall at work in 2008 have been much more severe and persistent than they had been previously.”[168] The plaintiff described the following current symptoms to Professor Bittar:
[168]PCB 144
“Current Symptoms
She complains of neck pain as well as thoracic and lumbar back pain. These symptoms are of similar severity to each other.
1. Neck pain
This is sharp and constant with an average severity of 9/10. It radiates through both triceps into her forearms. It is exacerbated by standing in one position, rotating her neck, pushing or pulling, engaging in repetitive neck or arm movements, and lifting more than 1 or 2 kg. There are no reliable relieving factors.
2. Thoracic and lumbar pain:
This pain involves the midthoracic region and her entire lumbar region. It is sharp and constant with an average severity of 9/10. Her back pain radiates into both buttocks. Her back pain is exacerbated by sitting for more than 30 minutes, standing for more than 10 minutes, bending, or lifting more than 1 or 2 kg. There are no reliable relieving factors.
Current treatment
Her current treatment is as follows:
1. Weekly physiotherapy.
2. Weekly psychology review.
3. Medications. She takes medications daily, and these include nonsteroidal anti-inflammatory drugs, Panadeine and Panadeine Forte.”
80Professor Bittar concluded that the plaintiff was suffering from an aggravation of cervical spondylosis and aggravation of thoracic and lumbar spondylosis. He thought the plaintiff was incapacitated for her full pre-injury duties but that she has the capacity to work light duties on a full-time basis.[169] He said that her restrictions were as detailed.[170] In his opinion, these restrictions would have a significant impact on many activities of daily living.[171]
[169]PCB 145
[170]See information and restrictions set out under the heading “Current Symptoms” above
[171]PCB 146
81The plaintiff also saw Mr Nye, neurosurgeon, who examined her lumbar spine on one occasion on 21 September 2009. He accepted that the work-related incident had resulted in aggravation of the identified lumbar spine condition.
82Mr Nye considered that the consequences of the plaintiff’s lumbar spine injury included the need to avoid repeated bending or twisting movements of the spine, prolonged unrelieved periods of either standing or sitting, and a lifting limit of 5 kilograms and to ensure that the plaintiff worked above waist level. Dr Davison’s opinion in relation to work restrictions was almost identical in content.[172]
[172]DCB 8
Conclusions as to pain and suffering
Pain
83I accept the plaintiff’s evidence that she is never pain free.
84I accept that the plaintiff suffers from ongoing, fluctuating, severe and disabling pain in her low back and both legs, the right being worse than the left, with a feeling of “heaviness”, from which she is never free.
85I accept that the plaintiff suffers from discomfort and the pain in her neck, the severity of which is made worse by activities such as turning, twisting and flexing movements, or when using her right arm and shoulder doing forceful or sustained movements of her right arm. I accept that the pain in the plaintiff’s neck area manifests itself in aching pain across her neck, with pain into the right shoulder and the right side of the head.
86I accept that the plaintiff is susceptible to sudden, unexpected episodes of pain in both her neck and low back, which at times can be very acute, and that acute flare-ups of pain can be caused by a sudden, unguarded movement, such as stumbling, coughing or sneezing.
Effect on social life and activities of daily living
87I accept that in her activities of daily living, the plaintiff must take extra care not to aggravate her back and neck. I accept that the plaintiff has a limited ability to perform many day-to-day tasks, has difficulty lifting and carrying moderate weights, getting into and out of a motor vehicle and driving for extended periods.
88I accept that she has difficulty performing many domestic household tasks, including laundry and cleaning.
89I accept that while the plaintiff is able to, and on occasion does socialise, her enjoyment of this is affected by her pain levels, to the extent that she would prefer to stay home, because it is just easier for her.
90I accept that while the plaintiff can undertake international travel on a plane to visit her homeland of Italy, the travel aspect of those visits is extremely unpleasant for her, since she must constantly modify her position while on the plane from sitting to standing and back again, in order to endure the pain during that journey.
91I find that the plaintiff has demonstrated a degree of stoicism in relation to her social activities, including going out with her friends from time to time and travelling overseas on a plane, and that she engages in these activities despite the pain that they cause her, because she misses her homeland of Italy and likes socialising with her friends.
Work restrictions
92The plaintiff has continued to perform work as a sales assistant since the incident. However, I accept that the reason she can cope with this work at present is because she is taking medication of varying strengths on a daily basis.
93I accept that in her present job, she has difficulty performing many work tasks and that she must take extra care not to aggravate her back and neck. I further accept that the plaintiff is sometimes unable to modify her work duties sufficiently to avoid spinal pain altogether, and that while at work she must stand for long periods of time, bend, stretch and reach to complete her work tasks.
94I accept that she voluntarily restricts the type of medication she takes to lower strength medication when she is going to be at work, to ensure that the medication does not interfere with her ability to perform her job.
95I accept that because of this, the plaintiff’s pain levels increase as the day progresses, despite the medication she is taking.
96I accept that the plaintiff is presently restricted in her capacity to perform her work duties, that she ought not lift anything heavier than 5 to 7.5 kilograms in weight,[173] that she is now restricted to working between waist and shoulder height, should refrain from recurrent twisting, bending or straining, and that she should not work while sitting with her head bent over a bench or desk. I accept that these are new restrictions which have come about by reason of the injuries suffered by the plaintiff during the incident.
[173]See views of Mr O’Brien (PCB 40 and 44); Dr Karlov (PCB 103B); Mr Nye (PCB 75) and Dr Davison (DCB 8)
97I find that the plaintiff has demonstrated a certain degree of stoicism in persevering with her present job, despite the fact that she is sometimes unable to avoid engaging in activities which cause her pain, because she likes that job and she wants to keep it.
Medication and treatment
98I accept that the plaintiff now needs to take medication every day, and that she uses multiple medications each week. I accept that the medication which the plaintiff uses includes prescription medications. I find that at present, the plaintiff uses medications including Panadeine Forte, Panadeine,[174] Nurofen,[175] Nurofen Plus, Voltaren and Temazepam. I find that prior to the incident, the plaintiff took medication intermittently, rather than every day.
Do the consequences satisfy the narrative test?
99In Haden Engineering Pty Ltd v McKinnon,[176] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompass both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[177] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. Ultimately, the question of whether an injury satisfies the narrative test is one of impression or value judgment.
[174]Paragraph 26 of the first affidavit
[175]Paragraph 15 of the first affidavit
[176](2010) 31 VR 1
[177]Haden Engineering Pty Ltd v McKinnon (ibid) at [9]
100 The weight to be attached to the plaintiff’s account of the pain experience will depend upon an assessment of the plaintiff’s credibility.[178] In Haden, Maxwell P also observed that the cases recognise that some plaintiffs may be more “stoical” than others. His Honour said that the stoical plaintiff is not to be viewed as any less serious, merely because he/she manages to remain more active than might be expected given the level of pain.[179]
[178]Haden Engineering Pty Ltd v McKinnon (ibid) at [12]
[179]Haden Engineering Pty Ltd v McKinnon (ibid) at [13]
101 I have already made observations about the plaintiff's demeanour and presentation in Court, and in particular, her willingness to make concessions which were against her interests. I have found that the plaintiff was a truthful witness. I have also concluded that the plaintiff is somewhat stoic in her approach to managing the consequences of her injuries.
102 An analysis of the evidence clearly demonstrates that many aspects of the plaintiff’s life have been adversely affected by the consequences of the injuries that she suffered during the incident. The plaintiff endures permanent, daily pain, requiring frequent medication, which of itself, amounts to a “very considerable” consequence.[180] This pain has caused significant restriction in her ability to work, has adversely affected her enjoyment of social activities and has impacted on her ability to perform the usual activities of daily living.
[180]Kelso v Tatiara Meat Co Pty Ltd (supra) at [199] per Dodds-Streeton JA
103 The plaintiff’s young age and therefore, the likely period for which she will experience the consequences of her injury, are relevant to the task of judging the pain and suffering consequences to this plaintiff, by comparison with other cases.[181] The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account, when assessing all of the evidence.[182]
[181]Kelso v Tatiara Meat Co Pty Ltd (ibid) at [17]
[182]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at [47]
104 Taking into account all of the evidence, I am satisfied that the consequences of the plaintiff’s spinal injury are “serious”, and satisfy the narrative test.
Conclusion
105 Accordingly, pursuant to s134AB(16)(b) of the Act, I grant leave to the plaintiff to bring common law proceedings in respect of injury to her spine, suffered on or about 19 November 2008.
106 I will hear the parties on the issue of costs.
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