Cleland-Forster v Victorian WorkCover Authority
[2019] VCC 911
•26 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MILDURA | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-03039
| PAULINE WENDY CLELAND-FORSTER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 3 and 4 April 2019 | |
DATE OF JUDGMENT: | 26 July 2019 | |
CASE MAY BE CITED AS: | Cleland-Forster v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 911 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – pain and suffering only – whether the injury to the lumbar spine is compensable – issues as to the extent of any consequences suffered by the plaintiff as a result of the injury to the lumbar spine
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dordev v Cowan & Ors. [2006] VSCA 254; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr C S O’Sullivan | Maurice Blackburn |
| For the Defendant | Mr A J McG Moulds QC with Mr R Kumar | Hall & Wilcox |
HER HONOUR:
1 Between September 2013 and about January 2014, the plaintiff, Pauline Cleland-Forster, was employed with Ramsay Health Care Proprietary Limited (“Ramsay Health Care”) as a qualified Emergency nurse at Mildura Base Hospital (“Mildura Hospital”). Previously, she worked as a qualified nurse at Swan Hill Hospital for eighteen months and prior to that, as a nurse for Western Health for approximately ten years.
2 The plaintiff reported to her treating general practitioner, Dr Monzon, that she did not experience back pain whilst working at Swan Hill Hospital.
3 The plaintiff’s evidence was that the work at Mildura Hospital was heavy, physically demanding and involved bending, lifting and twisting.[1] Not long after starting work with Ramsay Health Care, the plaintiff said she experienced sciatic pains travelling down her left leg. On 15 December 2013, the plaintiff awoke with severe low-back and left leg pain. She attended the Emergency Department of Mildura Hospital, where she was given pain medication.
[1]Plaintiff’s affidavit sworn 23 February 2018, paragraph [6] – Plaintiff’s Court Book 138
4 Subsequently, the plaintiff consulted her general practitioner, Dr Monzon, who referred her for an x-ray and MRI scan of the low back. She lodged a WorkCover claim, which was rejected.
5 The plaintiff attempted to return to work with Ramsay Health Care, unsuccessfully.
6 In June 2014, the plaintiff was referred by her general practitioner to Mr Girish Nair, neurosurgeon, whom she saw in August 2014. Mr Nair recommended conservative treatment of physiotherapy and pain management.
7 In the second half of 2014, the plaintiff returned to the workforce, working as a receptionist for three months at the Wentworth Club. In February 2015, she obtained employment as a first aid officer at St Joseph’s College, where she was employed on a permanent part-time basis, and working 32.5 hours per week.
8 Currently, the plaintiff is employed with the local Council administering immunisations. Her employment is casual and her work hours vary.
9 Since leaving the Mildura Hospital, the work the plaintiff has performed is less physical than her work as a qualified nurse in a hospital. The majority of her time is spent sitting, and is less physically demanding.
10 The plaintiff has not returned to her nursing duties due to her work-related injury. The plaintiff’s evidence is that she misses being a hospital nurse. She worked hard to train to be a nurse. She enjoyed the hands-on experience of working with patients in a hospital setting and misses the job satisfaction she derived from that work. She is frustrated that her career as a hospital nurse is no longer available to her. As a result of the work injury, she has experienced a range of domestic and recreational consequences.
The application
11 This is a serious injury application. Leave is sought for pain and suffering only. The body function said to be lost or impaired is the lumbar spine. The plaintiff says she had an asymptomatic spine, which she contends has been rendered symptomatic over the course of her employment with Ramsay Health Care, which was relatively brief. There is no specific incident relied upon.
The issues
12 Counsel for the defendant identified the following issues in relation to the application:
(a) the question of whether the plaintiff suffered a compensable injury in the course of her employment is not admitted and is in dispute; and
(b) in the event that it is established that the plaintiff suffered a compensable injury, the defendant submitted the consequences of this compensable injury are not “at least very considerable”.
The medical evidence
Medical records of the plaintiff prior to the work injury
13 The plaintiff’s medical records of attendance at the Lara and Corio Medical Clinics were before the Court and covered the period December 2003 through to September 2010. There was a gap in the records from September 2010 to December 2013. In December 2013, the plaintiff commenced consulting Dr Monzon, general practitioner, in Mildura.
14 The plaintiff was cross-examined in relation to her previous medical records. She was taken to the following entries:
(a) In June 2004, the plaintiff reported and sought treatment for recurrent low-back pain which radiated to the low thoracic spine. She wondered whether it was related to her transport accident and was told it was possible but difficult to separate from Aged Care. The plaintiff’s evidence was that she worked in Aged Care;[2]
[2]Defendant’s Court Book 63
(b) In May 2005, the plaintiff reported pain and numbness in the left thigh, on and off, which this time lasted three days. Imaging of the thoracolumbar spine was ordered. The x-ray was normal, and there was no evidence of arthritis or nerve compression. Her general practitioner said he would arrange an appointment with an orthopaedic surgeon or rheumatologist. There was no evidence that she consulted any specialists at this time.
(c) In May 2007, the plaintiff reported low-back pain and was referred to a physiotherapist. She said that she thought she would have seen the physiotherapist but was unable to say for how long she received treatment.
(d) In August 2009, the plaintiff reported experiencing hip pain for a year, which was getting worse and waking her up at night. On examination, it was noted that there was tenderness on the left hip. She was referred for an x-ray of the left and right hip, which showed early osteoarthritis of the left hip.
(e) In March 2010, the plaintiff reported back muscle pain after exercising. On examination, her lower back was palpable and tender and she was given two days off work. The plaintiff returned two days later, reporting back pain, a decrease in range of movement, and said that she had an appointment with a physiotherapist.
15 Given the elapse of time, I accept the plaintiff could not recall the specific attendances.
16 There was a gap in the plaintiff’s medical history between 2010 and December 2013, when she commenced seeing Dr Monzon, general practitioner, in Mildura.
17 Counsel for the plaintiff submitted that the prior attendances related to complaints of thoracolumbar pain. There is no evidence which indicates the plaintiff suffered from thoracolumbar pain.
18 Counsel for the defendant submitted that the plaintiff failed to disclose to medico-legal doctors an accurate history of her medical condition, which was particularly relevant given the plaintiff did not report a specific event which precipitated her symptoms.
19 The evidence is that on 10 December 2013, the plaintiff first consulted Dr Monzon. His progress notes confirm that she reported having “long struggled with ongoing pain to the left hip radiating to the legs which was worse after working in the hospital”. She had taken medication, which temporarily relieved the pain.
20 On 15 December 2013, the plaintiff attended the Emergency Department at the Mildura Hospital. The Emergency Department medical notes were before the Court. The plaintiff reported four months of ongoing left sciatic-like pain, which was worsening over the past few days at work. She reported pain in left flank area, radiating down the leg. The hospital notes record that her presenting complaint was back pain radiating to the left thigh. She reported a “previous history of similar episodes”. The impression was that she was suffering muscular pain. She was administered Panadeine Forte and Diazepam, and was discharged.[3]
[3]Plaintiff’s Court Book 23
21 I accept that the plaintiff reported to Dr Monzon that she had long struggled with ongoing pain in the left hip which was worse after working in the Mildura Hospital. The record suggests it became worse after she commenced work at the Mildura Hospital. Dr Monzon’s records are consistent with what the plaintiff reported at the Emergency Department at the Mildura Hospital, namely which recorded “previous history of similar episodes”
The Mildura Hospital
22 On 15 December 2013, the plaintiff presented to the Mildura Hospital. The medical records of the Mildura Hospital confirm that on 15 December 2013, the plaintiff presented with back pain radiating to the left thigh. She said she woke that day with spasms in her back and leg, which she described as “ongoing left sciatica like pain, worsening after past few days at work; left flank area radiating down leg; ongoing headaches”.[4] The plaintiff reported a previous history of similar episodes and that the pain could not be controlled by Nurofen/paracetamol. The plaintiff was prescribed Panadeine Forte and Diazepam, and was discharged.
[4]Plaintiff’s Court Book 24
Dr Michael Monzon
23 Dr Michael Monzon, general practitioner, confirmed that he had treated the plaintiff since 10 December 2013. He provided numerous reports.
24 On 10 December 2013, the plaintiff provided a past history of migraines and a motor vehicle accident in 2002, in which she suffered a severe whiplash injury. Dr Monzon recorded that the plaintiff reported she was having intermittent episodes of back pain which was controlled by NSAIDs and Panadol, and which did not limit her from working in the Swan Hill Hospital. Further, that since December 2013, she experienced “left pain radiating to the legs, worse after work”. She attended the Emergency Department due to ongoing pain from her back and was treated for muscular strain and sent home. She denied any incident or fall, or injury at work. Dr Monzon reported that the plaintiff was under the impression that the back and leg pain can be due to prolonged standing and occasional lifting and moving of patients, and from last year, 2013, she has been missing work due to persistent back pain. She was referred for an MRI scan, which showed an L5-S1 disc bulge with no cervical/spinal stenosis. The plaintiff underwent physiotherapy and alternative options of hydrotherapy, which offered no relief. She was referred to Mr Nair, neurosurgeon, for review.
25 Initially Dr Monzon said he could not totally say that the disc bulge was a work-related injury due to the absence of clinical evidence from her history. He said it could also be due to her degenerative condition. In his more recent reports, he accepted that there was an organic cause of her back pain which he attributed to the bending and lifting of heavy objects at work. He said that her chronic back pain could probably be related to her work due to the accumulation of stress to her back due to repetitive bending, lifting and twisting at work. He said the back pain she has is permanent and could be attributed to her work while she was at the hospital.
Mr Girish Nair
26 In August 2014, Mr Girish Nair, neurosurgeon, examined the plaintiff on referral from Dr Monzon. Mr Nair said the plaintiff’s presentation was of ongoing and worsening back pain. Although she could not recollect any specific instance of injury at work which precipitated her symptoms, she reported performing heavy work and long hours of standing at her workplace as an Emergency nurse at the Mildura Hospital. Mr Nair’s diagnosis was low-back pain secondary to the degeneration at the L5-S1 disc level. He said she did not describe any prior symptoms of such severe back pain or prior injury and hence he could not comment on whether this would be an aggravation of a pre-existing medical condition.
27 Mr Nair said it would be hard to form a direct relationship to her specific employment at that period of time in the absence of any specific incident. The plaintiff reported to Mr Nair that she could not return to work due to the excruciating symptoms she would suffer even after working for a short period of time. He said she did not have any obvious clinical signs. She reported excruciating pain after staying in a fixed position of standing or walking for even two hours, and as her work required her to spend more than two hours during a shift in these positions, she was unable to return to work.[5] He said that the symptoms of low-back pain are arising from the disc degeneration seen at the L5-S1 level. Further, that the extent and severity of her symptoms would seem slightly out of proportion to the findings on examination and her scan.
[5]Defendant’s Court Book 76
Mr Thomas Kossman
28 In October 2015, Mr Thomas Kossman, orthopaedic surgeon, examined the plaintiff at the request of her solicitor. Mr Kossman diagnosed ongoing lumbar back pain associated with left lower limb radicular pain secondary to a symptomatic aggravation of L4-S1 degenerative facet joint disease and L5-S1 degenerative disc disease. He obtained a history of the plaintiff working as a nurse with Ramsay Health Care for three months, and after a heavy day at work, waking with severe lumbar pain, with pain radiating down her left lower limb to her foot. He said the plaintiff reported a prior history of left buttock pain. He said there was a temporal and causal relationship between the plaintiff’s workplace duties and the onset of her injury. It was his opinion that her workplace duties were responsible for the symptomatic aggravation of her L4‑S1 degenerative facet joint disease and L5-S1 degenerative disc disease. He accepted that the plaintiff’s incapacity to return to her pre-injury employment will persist for the foreseeable future.
Associate Professor Bruce Love
29 In July 2016, Associate Professor Bruce Love, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitors. Professor Love said he had read the accompanying documents. Professor Love obtained a history that the work at Mildura Hospital was particularly busy. The work was heavy in nature. The plaintiff noticed pain, not so severe as to cease work, and she did not feel she had time, because of other aspects of her life, to consult a medical practitioner. She put up with the discomfort. In December 2013, she noticed increasing pain to her lower back, and reported going home to bed. The following day she had severe pain and attended the Emergency Department at the Mildura Hospital. She reported ongoing symptoms which have not altered in pattern of pain, although the intensity of pain has diminished to some degree. She reported attempting to return to work but being unable to cope. She has returned to other work and sees her doctor on a monthly basis.
30 Professor Love diagnosed a degenerative disc disease of the lumbar spine at the L5-S1 level. There is an associated disc protrusion which he believes is producing sciatic symptoms in the left leg. It was his opinion that there is a substantial organic basis for her injury. He described in reasonable detail her condition and the circumstances of onset. It was his opinion that it can reasonably be accepted that the symptoms came as a result of the nature of her work generally in September to December 2013. He had a history of the work being “particularly busy, heavy in nature and a need to move beds rather than trolleys when transferring patients”. She reported noticing pain, but not sufficient to cease work.
Dr Ales Aliashkevich
31 In December 2018, Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. He obtained a history of the job being heavy and physically demanding, involving a lot of bending, lifting and twisting. Her duties involved general nursing and patient care, such as assisting patients to move, and lifting up the manually operated head of the bed. She had to push beds and trolleys by herself. On a later shift, there was only one personal care attendant for the site and she would need to do more physical tasks on her own. The plaintiff denied having any back problems prior to commencing work at Mildura Hospital. She reported that not long after commencing work at Mildura Hospital she began getting sciatic-type pain travelling down her left leg which she managed with regular use of paracetamol. She reported finishing work feeling tired and exhausted. She woke the next day with severe back and left leg pain.
32 It was his view that the plaintiff’s radiological investigations demonstrated a fairly significant and clear annular tear in segment L5-S1 which likely resulted from exacerbation of a pre-existing degenerative lumbar spine condition related to physically demanding and repetitive manual style work as a nurse. I note that Dr Aliashkevich inspected the radiology and it was his view that the extent of the L5-S1 central annular tear can be classified as fairly significant rather than small. It was his view that her condition was work related; over the course of her employment and in particular on and around 15 December 2013. He had read and discussed the findings of a number of the other medico-legal doctors who examined the plaintiff.
Mr Clive Jones
33 In July 2014 and August 2016, the plaintiff was medically examined by Mr Clive Jones, orthopaedic surgeon, at the request of the defendant’s insurer. He obtained a history of the plaintiff waking the following day after an afternoon/evening shift with acute pain in the lower back and muscle spasms. This was her first experience of this nature. There was no history of fall, lifting strain or similar event. It was his opinion the plaintiff had symptomatic lumbar disc degeneration. He diagnosed discogenic low-back pain in the absence of there being no history of any injury associated with the plaintiff’s work. He considered it highly unlikely that employment was and is a significant contributing factor. He said there was no evidence of employment contributing to an aggravation or deterioration of the back problem. In 2016, he said that despite working in a busy accident and emergency department, no particular injury was recalled. She simply woke one morning with acute low-backache and a good deal of muscle spasm and later became conscious of pain affecting the left leg. An attempt to return to her employment was unsuccessful due to ongoing pain.
Associate Professor Anthony Buzzard
34 In September 2017, the plaintiff was medically examined by Associate Professor Anthony Buzzard, surgeon, at the request of the defendant’s insurer. Associate Professor Buzzard obtained a history of pain in both legs, predominantly the left leg, in October and November 2013. He recorded that the plaintiff reported her legs felt tired and on 15 December 2013, when she moved, she experienced spasms in her back. The plaintiff reported no previous back pain. It was his opinion that the plaintiff does have degenerative disc disease at L5‑S1 which is evidenced in the various images. It was his opinion that the degenerative disc disease was probably aggravated during the course of her work with the Mildura Hospital on the history that she had given him that day. It was his view that the plaintiff sustained an injury and that her employment was a significant contributing factor. He thought the injury was an aggravation of a pre-existing low-back pathology.
Mr Graham Doig
35 In January 2019, Mr Graham Doig, orthopaedic and trauma surgeon, examined the plaintiff at the request of the defendant’s solicitor. The plaintiff reported no acute injury. She described a busy shift, as usual, and being fatigued and aching all over while performing the shift. She reported attending the Emergency Department the following day. The plaintiff denied any previous problems or injuries to her back, although she suffered from a motor vehicle accident in 2002 when she sustained a soft tissue injury to her neck.
36 Mr Doig diagnosed a symptomatic exacerbation of a pre-existing, degenerative lumbosacral spine, particularly affecting the L5-S1 inter-vertebral segment. He said the cause of primary, idiopathic osteoarthritis of the spine is unknown and is usually multifactorial in origin. He said the plaintiff’s working conditions may have symptomatically exacerbated the pre-existing pathology.
37 Mr Doig said the plaintiff’s overall prognosis must be guarded. He imposed a 10-kilogram lifting, pushing, pulling limitation, with restricted bending and twisting through the spine. He said she will require breaks from prolonged sitting, standing and driving, and requires the ongoing use of analgesic medication which is being overseen by her treating general practitioner.
38 I accept that the plaintiff consistently reported to the majority of the medical witnesses that the work at the Mildura Hospital was busy and heavy in nature and over a period she noticed pain and tiredness in her legs. She was working with discomfort and going home to bed exhausted, in particular on the day of 14 December 2013. On 15 December 2013, she woke with more severe pain and consulted the Emergency Department. She was diagnosed with muscular pain and provided medication. All medical witnesses obtained a history of “no acute injury”. The plaintiff’s evidence was that the work at the Mildura Hospital was heavy, fast paced, physically demanding and involved bending, lifting and twisting. She said the work at the Swan Hill Hospital was lighter and she did not experience these symptoms whilst working there. None of the medico-legal witnesses obtained a history of low back pain. Mr Kossman obtained a history of right buttock pain.
39 The plaintiff attempted to return to work on a number of occasions but without success. Ultimately, she was told not to return until she had completely recovered.
Credit of the Plaintiff
40 Of central importance is the credibility of the plaintiff as a witness and as a historian of her symptoms to medical practitioners. The Court of Appeal has referred to the fact that medical opinions may, to varying degrees, be dependent upon the accuracy of the patient or claimant as an historian.[6] A medical opinion which is based upon an account by a patient or claimant as to his or her symptoms “may have little or no probative weight where the court determines that such a witness is not reliable”.
[6]For example Mobilio v Balliotis [1988] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [46]; Dordev v Cowan & Ors [2006] VSCA 254 at paragraphs [14] and [19]
41 The fact that a court determines that a plaintiff is not a reliable witness, either in general or in respect of particular matters, does not mean that all of the medical opinions relied upon by that plaintiff should be disregarded. In Cakir v Arnott’s Biscuits Pty Ltd,[7] the Court of Appeal said that an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application. Further, that regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.[8]
[7][2007] VSCA 104 at paragraphs [49]-[58]
[8]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
42 The plaintiff presented as an inexperienced witness who was uncomfortable with cross-examination. On occasions she was guarded. She had difficulty in expressing her answers and often provided unrelated information which was difficult to follow.
43 The plaintiff’s credit was attacked by the defendant. Counsel for the defendant raised a number of matters in relation to the plaintiff’s credit, including that the plaintiff failed to disclose to medico-legal doctors an accurate history of her medical condition.
44 The evidence was that in the period June 2004 to September 2010, on two occasions the plaintiff reported pain and numbness in the left thigh/ left hip, and on x-ray of the left hip, osteoarthritis was found. In relation to the low back, there were three occasions when she reported pain and sought treatment: in 2004, 2007 and 2010. In relation to the 2010 attendance, the plaintiff reported pain after exercise. In 2010, she was referred to a physiotherapist. She said she would have attended but could not remember the number of sessions. I would not criticise the plaintiff for not disclosing back pain after exercise.
45 In cross-examination, the plaintiff did not dispute each attendance. She accepted that she reported pain. She was asked why she had not disclosed the attendances to the medico-legal doctors. She said:
“The only thing I can say is that I believed I didn’t have significant back pain or hip pain, so significant that it was burden to me.”[9]
[9]Transcript 22, Line 31 – Transcript 23, Line 1
46 In re-examination, the plaintiff said that she was unable to recall those attendances.
47 I accept that the plaintiff did not disclose the prior attendances to the medical witnesses.
48 Ultimately, I accept that there were four attendances where the plaintiff made complaints of low-back, hip and leg pain between 2004 and 2010. I accept that the plaintiff was being cross-examined about what she had reported to medical practitioners at the Lara and Corio Medical Clinics as far back as 2004, many years ago.
49 They were isolated attendances over a period of six years, from which she recovered, had limited treatment and no ongoing restrictions. There was no evidence that she was on restricted duties at work. She did not consult a specialist, although it was offered, and there was no evidence that she was prescribed ongoing medication.
50 I also take into account that there was no evidence that the plaintiff took significant time off work. She was able to continue working as a nurse in what is known to be a physically demanding job.
51 I also take into account that the plaintiff reported a history of left buttock pain to Mr Kossman, and left hip pain to Dr Monzon. Both had a prior history of hip/buttock pain and both accepted the plaintiff’s current condition was work related.
52 I note that some of the medico-legal doctors were provided with copies of the medical records of the Lara and Corio medical clinics. Counsel for the plaintiff submitted that I can assume that the doctors would have read the records and as they have not referred to the limited prior history of back pain, I can conclude that they considered the evidence of no relevance.
53 In particular, counsel for the plaintiff submitted that as Professor Buzzard was provided with the medical records of the Corio and Lara clinics, including the progress notes of Dr Monzon of 10 December 2013, the Emergency Department report of the Mildura Hospital of 15 December 2013 and the medical questionnaire completed by Dr Monzon, I can be satisfied he had regard to the content of those documents.[10]
[10]Transcript 145
54 In his report, Professor Buzzard identified that he was provided with these documents, including medical reports relating to the plaintiff; however, he did not make reference to those documents in his report, nor did he state that he had read the documents. Further, he stated that his conclusion was based on the history “given to me today”.[11] I accept that Professor Buzzard provided this conclusion on the basis of the history given to him on the day he examined the plaintiff, namely that the plaintiff reported no history of back pain.
[11]Defendant’s Court Book 52
55 I note that Professor Love, said he had read all the reports provided. Dr Aliashkevich referred to a number of the medical reports obtained in relation to the plaintiff.
56 On the evidence as a whole, I concluded that the plaintiff’s failure to disclose the prior history, being two attendances relating to low back in 2004 and 2007 are not fatal to this application.
57 The plaintiff was cross-examined about a meeting she had in about January 2014 when she was interviewed by Linda Nathan, the return to work coordinator in the Human Resources team of Ramsey Health Care, and Leanne Dellar, the nurse unit manager of the Emergency Department of Ramsay Health Care, in relation to the plaintiff’s recent leave and a request by the plaintiff for modified duties.
58 At the time of the meeting, it was accepted that the plaintiff had not reported suffering injury to her back as a result of her duties in the Emergency Department.
59 There was a dispute between the plaintiff and the employer as to the discussion that took place at the meeting in January 2014 in relation to whether the plaintiff attributed her condition to her employment. Ultimately, the plaintiff underwent medical investigations and obtained a medical opinion, with the result that she lodged a WorkCover claim.
60 The plaintiff has consistently reported to all medical witnesses that there was no specific incident that she could attribute to the onset of her injury and attributes her injury to the heavy nature of her work. I am of the view that the discussions at the meeting are of little relevance to the matters I must determine.
61 In cross-examination, the plaintiff was asked why she had delayed in lodging a Claim Form with her employer. The plaintiff said the delay in lodging the Claim Form was due to the fact that she did not know whether she would be looked after in regards to an injury. The stigma of going on WorkCover and not being believed were her concerns.[12] The plaintiff said that she was not looking at going on WorkCover and still having a back injury. She has always worked, done her best, tried to get better and get back to work.[13] I accept her explanation.
[12]Transcript 43, Lines 16-21
[13]Transcript 44, Lines 11-17
62 The plaintiff was the subject of surveillance which did not disclose the plaintiff performing activities inconsistent with her evidence.
63 Overall, I found that the plaintiff did not always answer the questions asked and in answering questions offered unrelated information. I accept that was due to the fact she was uncomfortable with the process. I take into account the fact that the plaintiff consistently reported to the medical witnesses that the nature of her work at the Mildura Hospital was repetitive, heavy, fast paced, and that there was no acute injury. I also note that the plaintiff impressed me as a hard working person who returned to work as soon as possible. overall, I do not consider the plaintiff’s credit to be in issue.
Analysis
64 The plaintiff’s claim is that she suffered injury over the course of her employment with Ramsay Health Care. She agreed that she did not report to her employer that she suffered injury out of the course of her employment with the employer.
65 The defendant’s position was there has never been an accepted WorkCover claim in respect of this plaintiff. The first knowledge the employer had of the plaintiff injuring her back at work was in June 2014, when she completed a Claim Form. This was recorded in the Employer’s Injury Claim Form.[14]
[14]Defendant’s Court Book 7
66 I must consider the evidence as a whole.
67 The plaintiff’s evidence was that she commenced work with Ramsay Health Care as an Emergency nurse on or about 2 September 2013. The job was heavy and physically demanding, involving a lot of bending, lifting and twisting. Not long after she started work with Ramsay Health Care, she began getting (sciatic like) pain travelling down her left leg. She also suffered low-back pain. She reported to some of the doctors that she noticed pain, but not so severe as to cease work, and she did not feel she had time to consult a medical practitioner because of other aspects of her life. There was undisputed evidence that her mother-in-law was ill and subsequently died. Over the next few months the pain worsened and led to her feeling very tired. I accept the plaintiff’s explanation to Professor Love as to why she did not seek medical treatment earlier, namely that she did not feel she had the time, because of the other aspects of her life to consult a medical practitioner. I accept that this would not be uncommon for a person in these circumstances.
68 The plaintiff reported to all medical witnesses that there was no acute injury and that the work at the Mildura Hospital was heavy in nature and led to her feeling tired and exhausted after a day’s work. Her evidence was that she was getting sciatic like pain which worsened throughout her employment.
69 After completing her shift on 14 December 2013, she felt exhausted and sore and needed to go home to bed. On 15 December 2013, she awoke with severe back and left leg pain. She attended the Emergency Department at the Mildura Hospital and was prescribed medication of Panadeine Forte and Diazepam. She attended her general practitioner, who referred her for an x-ray and MRI scan of her low back, which were performed in December 2013. She was referred to a physiotherapist for treatment.
70 It was accepted that the plaintiff does not have capacity for pre-injury employment. I take into account that the plaintiff has made attempts to return to pre-injury employment without success. The plaintiff requested modified duties from the employer which were not available. To the plaintiff’s credit, she has found suitable employment within her restrictions which is consistent with a person who is hardworking.
71 The majority of the medical evidence was that the plaintiff’s injury was sustained in the course of her employment with Ramsay Health Care rather than due to degenerative changes. The evidence of Dr Monzon, Mr Kossman, Professor Love, Dr Aliashkevich and Professor Buzzard was that the plaintiff’s injury was work related. They all obtained relatively detailed histories of the plaintiff’s work at the Mildura Hospital and how the injury developed. Mr Doig said it was possible that the injury was work related. Mr Nair and Mr Jones said the plaintiff’s injury was due to degenerative changes.
72 In considering the evidence as a whole, I am satisfied that the plaintiff’s low-back injury was caused due to her employment with Ramsay Health Care.
Consequences
73 I will now consider whether the consequences of the plaintiff’s injury would meet the “very considerable” test.
74 All medical witnesses accepted that the plaintiff could not return to pre-injury work full time as a Registered Nurse. The plaintiff’s evidence was that she completed a Certificate IV in both Health (Nursing) and Pathology Collection at TAFE in the late 1990s. In 2008, she completed a Bachelor of Nursing at Deakin University. She worked as a nurse at Western Health for ten years, then as a Registered Nurse at Swan Hill Hospital, before commencing at Mildura Hospital.
75 In view of the decision of the Court of Appeal in Ellis Management Services Pty Ltd v Taylor,[15] I accept that for a plaintiff to not be able to return to work in her professional capacity for which she has trained is a consequence at the high end of the scale. In fact, the plaintiff’s evidence was that she worked hard to achieve her qualification in nursing. She misses the work and job satisfaction and is frustrated her career as a qualified nurse is no longer available to her. I accept that the loss of one’s chosen career is a consequence at the high end of the scale. The plaintiff is working part time in a less demanding role. I accept this is a consequence of her injury, and I assess this at the medium end of the range.
[15][2013] VSCA 326 at paragraph [35]
76 I accept the plaintiff suffers pain for which she requires medication. She reports her pain levels at two to three out of ten on a good day and seven out of ten on a bad day. The pain is not constant but is regularly present. She takes medication of Lyrica, Celebrex and paracetamol on a daily basis. She has taken Panadeine Forte occasionally, but tries to limit it because of the constipation. She takes Coloxyl and Senna to help with constipation. I accept the medication she takes is at the medium end of the range; however, I note that she has been taking medication since 2013. The level of medication the plaintiff takes is a consequence I can take into account, which was opined by Dodds-Streeton JA in Kelso v Tatiara Meat Company Pty Ltd,[16] where her Honour said:
“The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[16](2017) 17 VR 592 at paragraph [199]
77 This proposition was endorsed by Tate JA in Sutton v Laminex Group Pty Ltd.[17]
[17](2011) 31 VR 100 at paragraph [91]
78 The plaintiff says that her sleep is affected. She finds lying down brings on the pain. She is no longer able to lie on her back or side in bed, but only on her stomach. She finds it difficult to go to sleep. She wakes up during the night with pain. She rarely sleeps past 5.30am to 6.00am. Her doctor has advised her not to take sleeping medication as it will affect her ability to drive a car and work. I accept that interrupted sleep is a consequence which I can take into account which I accept is at the middle of the range.
79 The plaintiff’s evidence is that she was an experienced and keen horsewoman, riding horses since aged twelve. She would ride horses when visiting her parent’s farm at Ocean Grove. The plaintiff’s evidence is that currently, she visits her family for one week every four to five months. She can no longer ride a horse because she cannot mount a horse or ride due to the bumping and jolting involved. I accept that the plaintiff can no longer participate in horse riding and dressage, a pastime she enjoyed. The plaintiff’s evidence was that she participated in this activity with her family. I accept this is a consequence I can take into account. As the plaintiff is only spending three weeks per year at her parent’s property, I accept this is at the middle of the range. The plaintiff reported this consequence to a number of the medical witnesses.
80 The plaintiff said that since she was a young girl she has loved to water ski. It was an activity she engaged in with her family members who would meet at Kangaroo Lake. She was a competent skier. She cannot drive the boat any more as it is extremely bumpy and she knows it would aggravate her back pain. She misses this activity. The plaintiff reported the loss of this activity to the medical witnesses. I accept this is a consequence that I can take into account. The plaintiff’s evidence was that this is an activity which she and her family engaged in annually at Easter. I accept this is at the mid end of the range.
81 The plaintiff’s evidence is that she and her husband live on a rural block of 10 acres. It is hilly and sandy. She has tried to walk around the property for exercise but walking up and down hills on sandy soil aggravates her back. I accept this is a consequence which I can take into account. I assess this at the middle end of the range.
82 The plaintiff says she finds sitting still for long periods of time affects the pain in her back. This affects her ability to sew and knit, activities she enjoyed. I accept that the pain affects her ability to sew and knit. The plaintiff was under surveillance and was shown sitting at a table. The plaintiff’s evidence was that she was sewing. I observed that the plaintiff stood up regularly. I accept that her ability to perform her hobbies of sewing and knitting is a consequence I can take into account.
83 The plaintiff also finds standing to prepare and cook a meal affects her level of pain. The plaintiff reported to medical witnesses that she can perform household duties, which now take time. She breaks up the activities and is assisted by pain medication. I accept that this is a consequence which I can take into account. I assess this at the middle end of the range.
84 The plaintiff says that the pain she suffers interferes with her intimate relationship with her husband. I note that she reported this to the medical witnesses and this was confirmed by her husband. I accept this is a consequence which I can take into account.
85 I take into account the majority of the consequences were supported by the evidence of the plaintiff’s husband.
86 I am satisfied that the plaintiff was involved in a work accident which, to this plaintiff, resulted in her experiencing symptoms of a physical nature. The consequences of her low back injury alone have impacted upon her life as she knew it before the work accident. She has suffered for six years and the medical evidence is that the injury is permanent. The evidence is that she can no longer engage in work as a registered nurse which was the career she worked hard to obtain.
87 The medical witnesses accepted that the plaintiff would suffer consequences. The plaintiff has suffered the above consequences since 2013. There is no suggestion that her condition will improve. In fact, a number of the medical witnesses suggested her prognosis was guarded. Professor Love said there was a possibility that she may require surgery in the future.
88 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to her of her impairment can be reasonably described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal, but, rather, attributed appropriate weight to each consequence in light of the evidence.
89 I accept that the low back injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of hearing, as being “at least very considerable” and certainly “more than significant or marked”.[18] In making this assessment, I have looked at the consequences of the low back injury alone.
[18]Humphries & Anor v Poljak [1992] 2 VR 129
90 Accordingly, I grant leave to the plaintiff to issue proceedings at common law to recover pain and suffering damages with respect to a low-back injury.
91 I will hear the parties on costs.
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