Corbo v Calvary Home Care Services Ltd
[2012] VCC 980
•30 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03883
| MARY ANN CORBO | Plaintiff |
| v | |
| CALVARY HOME CARE SERVICES LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 8 and 14 March 2012 | |
DATE OF JUDGMENT: | 30 March 2012 | |
CASE MAY BE CITED AS: | Corbo v Calvary Home Care Services Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 980 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – low back injury – pain and suffering damages – loss of earning capacity principles – whether serious injury
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(38)(a)
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
JUDGMENT – Leave granted for pain and suffering damages only in respect of the low back injury. Application refused for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti with Mr G Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr W R Middleton SC with Ms R L Kaye | Wisewould Mahoney Lawyers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 11 August 2011 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of and in the course of her employment with the defendant. The plaintiff alleges she suffered injury to her lower back at work with the defendant on or about 24 April 2008.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages.
3 The following evidence was adduced or tendered during the hearing:
· The plaintiff gave evidence and was cross-examined on 8 March 2012.
· The plaintiff tendered the following documents:
§ Exhibit A, the Plaintiff’s Court Book, pages 8-20, 26-57, 69-73, 89-94, 125, 126, 129 and 140-155; and
§ Exhibit B, affidavit of Lou Perta, sworn 13 March 2012.
· The defendant tendered the following documents:
§ Exhibit 1, DVD film dated 26 June 2011 and 1 July 2011;
§ Exhibit 2, the plaintiff’s taxation returns for the years ending 2004 to 2011;
§ Exhibit 3, the Defendant’s Court Book, pages 7, 58-68 and 74-88L;
§ Exhibit 4, Dr Zhang’s clinical notes; and
§ Exhibit 5, osteopathic clinic questionnaire dated 30 November 2010 and 4 May 2010.
4 At the commencement of the application, Mr Middleton, on behalf of the defendant, stated that the issues for consideration from the defendant’s perspective were:
(a) the extent of the consequences of the low back injury to the plaintiff;
(b)the plaintiff continues to have an ability to work her pre-injury capacity and her earning capacity has not been compromised by the injury to her lower back; and
(c)the credit of the plaintiff, in particular, in relation to issues of reliability.
The Statutory Scheme
5 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
6 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
[1]s134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners, at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38). I have applied the principles set forth therein in reaching my conclusions in this application.
7 I am required by s134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
8 The plaintiff was born on 9 July 1961. She is now aged fifty years. She was a married woman until 2005, when her husband left the family home. The plaintiff is now divorced. She is the mother of four adult children aged between thirty and twenty-two years old.[3]
[3]PCB 8 and T 18
9 The plaintiff currently lives alone in her home. She commenced a relationship approximately two months ago.[4]
[4]T 34, L19-20
10 The plaintiff remained at school until aged fifteen. She then left school and worked in a supermarket in Tatura. Her previous work involved being married to dairy farmer. She worked on the diary farm with her husband, whilst they raised their children. She remained in that employment with her husband until 2005, when the marriage ended. The dairy farm was sold in 2007.[5]
[5]PCB 12
11 After the separation from her husband, the plaintiff moved from the farm in Murchison. The plaintiff commenced work as a carer for the defendant. Her duties included some homecare duties and also transportation of clients to medical appointments and similar outings such as shopping.
The Plaintiff’s Injury with the Defendant
12 The plaintiff was working as a carer for the defendant. Her duties included the transportation of a disabled client to go shopping at the Big W marketplace. It was in the process of undertaking these work duties that the plaintiff was injured.[6]
[6]PCB 9 at paragraph [3]
13 On 24 April 2008, the plaintiff, in the course of her employment, was taking the disabled client to the shopping centre. The plaintiff used her own vehicle to transport the client to the shopping area. The disabled client required the use of a walker, which the plaintiff had placed in the backseat of her car in order to transport it. The walker was too big to place in the boot of the plaintiff’s car. The plaintiff injured her back in the process of removing the walker from the back seat of the car in order to assist the disabled client into the shopping centre. The reason she said her back was injured was that it was difficult to manoeuvre the walker form the backseat, it was awkward and in a confined space. On the day of the injury, the plaintiff continued to do the grocery shopping with her client.[7]
[7]PCB 9 at paragraph [3]
14 The plaintiff reported the injury incident to her employer on the day of the accident. The register of injuries was completed and signed by the plaintiff on 24 April 2008.[8]
[8]PCB 129
15 It is not disputed by the defendant that the injury occurred as described by the plaintiff. The issue in this application was whether the consequences of the injury were as significant as the plaintiff was stating and to such an extent to satisfy the statutory test for serious injury.
The Plaintiff’s Medical Treatment
16 The plaintiff was injured on 24 April 2008. On 29 April 2008, she attended her general practitioner, Dr Zhang. The plaintiff complained of low back pain after lifting a wheelchair for a disability client. Dr Zhang noted that the plaintiff had had a previous history of L5-S1 degeneration. He thought that the new injury had aggravated the pre-existing injury.[9]
[9]PCB 34
17 On 21 May 2008, Dr Zhang organised for the plaintiff to undergo a CT scan of the lower back.[10] The CT scan reported and concluded as follows:
“Disc degeneration at L5-S1. Central and right posterior bulge of the L2‑3 disc causing mild canal stenosis.”[11]
[10]PCB 36
[11]PCB 26
18 Dr Zhang had prescribed Celebrex for the plaintiff to take as medication.
19 Dr Zhang referred the plaintiff to Mr Michael Falkenberg, an orthopaedic surgeon in Wangaratta. The referral is dated 27 May 2008.[12] There is no report from Mr Falkenberg in the Court Book.
[12]PCB 31
20 Dr Zhang later referred the plaintiff to Dr Michael Brighton-Knight, orthopaedic surgeon. Dr Brighton-Knight’s opinion was that, due to the prolonged nature of the pain in the plaintiff’s lower back, she may have required an operation to decompress the nerve roots. He was not prepared to do that operation until after an MRI scan had been performed and that the condition would then be much clearer.[13] The plaintiff underwent an MRI scan of the lumbar spine on 22 December 2008. the MRI findings were as follows:
“1 Broad based disc displacement posteriorly and right para-centrally L2/3, causing foraminal and lateral recess stenosis.
2 Severe disc degeneration change L5/S1, without any central canal stenosis and mild proximal foraminal encroachment on the right.”[14]
[13]PCB 42
[14]PCB 29
21 The plaintiff has not undergone any operative procedures to her lower back.
22 In September 2010, the plaintiff had surgery to her left shoulder to remove a tumour. She ceased work at the time of this surgery. She has not resumed work because of the surgery. She has not yet received clearance from her surgeon to return to work as a result of this surgery to her left shoulder.
23 In respect of her lower back, the plaintiff continues to take Lyrica and Nurofen for pain relief. In the past she has had physiotherapy treatment but has been recommended to cease that. She currently has osteopathic treatment and hydrotherapy treatment. The hydrotherapy treatment is conducted in the pool that she had installed in the rear of her home. The plaintiff’s osteopathic treatment is provided by Dr Paul Nevill and she attends for that treatment on a fortnightly basis.[15]
[15]T 22, L8-21
24 It is not suggested by any of the treating medical practitioners that the plaintiff undergo any surgery to her back at this time.
The Medical Opinions
Dr Zhang
25 Dr Zhang of the Tatura Medical Centre treated the plaintiff until approximately April of 2010. Dr Zhang noted in her report dated 24 July 2009 that the plaintiff had a past history of L5-S1 degeneration. She was of the opinion that the heavy lifting triggered or aggravated her existing low back condition.[16] In the same report, she noted that the plaintiff did not take a day off work after the injury. In her last report dated 8 April 2010, Dr Zhang diagnosed the plaintiff as follows:
“… is suffering from chronic backache post injury at work 2008. She has multiple level of disc bulge on lumbar spine from CT scan. … She should stay on this medication [Lyrica] to help her backache.”[17]
[16]PCB 34
[17]PCB 39
Dr Yousif Shamoun
26 The plaintiff’s current general practitioner is Dr Yousif Shamoun. Dr Shamoun is also at the Tatura Medical Centre. In his report dated 18 February 2012, Dr Shamoun gave the following opinion:
“She described constant pain around the right flank area which is in the same type as she has always felt. Her symptoms generally get worse with sitting and has pain at times around the back of the right buttock extending down into the calf. Occasional pins and needles in the back of the right leg.”[18]
[18]PCB 41
27 Dr Shamoun then states that, in his opinion, there are functional features in the presentation of the plaintiff as a consequence of the injury. He states that, in combination, her injury and associated functional features restrict the plaintiff in relation to her social, domestic and recreational activities.
28 In Dr Shamoun’s opinion, the plaintiff has symptoms which will persist for the foreseeable future:
“… prolonged sitting or standing, walking on rough or uneven ground, or up and down stairs, manual labour, bending, lifting, stooping and twisting.”[19]
[19]PCB 42
29 In Dr Shamoun’s opinion, the plaintiff was unsuitable for any employment for the foreseeable future.
30 Dr Shamoun finished his report with the following prognosis:
“Mary requires ongoing treatment including analgesics [Lyrica], swimming and osteopath[y]. Again, I would be slightly guarded about her prognosis because of the functional features identified.”[20]
[20]PCB 41
31 In summary, Dr Shamoun’s opinion is that the plaintiff is unable to work due to her injuries and functional features and that her treatment continue in the current conservative form.
Dr Michael Brighton-Knight
32 Dr Michael Brighton-Knight, orthopaedic surgeon, reported on the plaintiff’s condition on 11 December 2008. The only report from Dr Michael Brighton-Knight precedes the MRI examination which was performed on 22 December 2008 and requested by Dr Brighton-Knight. Unfortunately, there is no later report from the orthopaedic surgeon, either after seeing the MRI report or at a time much closer to the hearing.
33 In his report from 2008, Dr Brighton-Knight made the following observations:
“This woman has severe disabling right sided pain over the right flank, into her right buttock and into her groin, and down her thigh.
…
The femoral stretch test was subtly positive.
Her CT scan shows quite a large L2/3 disc herniation which is causing compression of the thecal sac as well as the exiting nerve root. On top of this, she has quite advanced L5/S1 disc degeneration with foraminal stenosis which I presume is actually very longstanding.
It seems quite likely to me that this woman has had an acute disc herniation which occurred when she was lifting a wheelchair at work … .”[21]
[21]PCB 42
34 Dr Brighton-Knight’s opinion in December 2008 was clearly that the injury to the L2-L3 disc was caused by the lifting of the wheelchair and that the injury to that level in her back was something new compared to the previous L5-S1 disc degeneration which he thought to be longstanding.
35 Dr Brighton-Knight’s report is of limited assistance to the Court in determining the level of disability that the plaintiff suffers at the present time. His opinion does, however, assist in establishing that the injury to the lower back was caused by the lifting incident at work. He also identifies the large disc herniation at the L2-L3 level as being in effect a new injury compared to the L5-S1 disc degeneration that the plaintiff had been suffering prior to the accident.
Dr Paul Nevill
36 Dr Paul Nevill is an osteopath. He has been treating the plaintiff since May of 2008 and continues to do so. Dr Nevill was of the opinion that the plaintiff would be able to do sedentary work rather than work that requires more physical duties. The number of hours the plaintiff would be able to work would depend upon the duties required of her.
37 Dr Nevill reported that the osteopathic treatment was beneficial in providing symptomatic relief by reducing her pain and mobility restrictions, but he did not believe it will address the underlying cause of her pain.[22]
[22]PCB 47
Professor Vernon Marshall
38 In his report dated 14 August 2009, Professor Marshall, surgeon, took a history from the plaintiff that she was working seven to fourteen hours per week doing personal respite care without lifting strains. She had three clients.[23]
[23]PCB 50
39 Professor Marshall noted that the plaintiff’s gait was antalgic with a limp favouring the right leg.[24] He diagnosed the injury as a work strain injury to the low back with persisting discogenic low back pain.[25] In 2009, at the time of his report, Professor Marshall noted that the plaintiff had lost no time from work and continues to work restricted duties as a personal carer with minimal lifting strains above 5 kilograms and ability to change posture frequently. She is coping with her current duties.[26]
[24]PCB 51
[25]PCB 51
[26]PCB 51
40 Professor Marshall found no evidence of functional overlay or exaggeration. He was of the opinion that the plaintiff was fit for pre-injury employment with the restrictions that had previously been outlined in his report. In terms of further physical treatment, Professor Marshall was of the opinion that physical treatment should be ceased and that the self-maintenance strategies relating to hydrotherapy and medication for pain should continue.[27]
[27]PCB 54
Dr David Barton
41 Dr David Barton is an occupational physician. He has prepared two medico-legal reports on behalf of the defendant in respect of this application. The reports are dated 7 September 2009 and 25 January 2010.
42 In examination, Dr Barton noted that the plaintiff:
“… generally moved in a slow and tentative manner. She walked without a clear limp although her gait was somewhat slow and she had difficulty walking on the heels and toes.”[28]
[28]PCB 60
43 Dr Barton was of the opinion that the plaintiff could increase her hours to 15 hours per week and then within a two-week period increase to her pre-injury hours of 25 hours per week.[29]
[29]PCB 60
44 Dr Barton then made the following observation:
“Of some concern during the assessment were several features that did not fit with a straightforward physical problem and point towards a degree of overlay. In particular the following were noteworthy:
§the discrepancy between her limited straight leg raising and postures noted at other times;
§the increase in reported symptoms with axial loading;
§the non-anatomical sensory changes.”[30]
[30]PCB 61
45 Dr Barton was of the opinion that there were functional features identified in the plaintiff’s response to the injury. However, he was of the opinion that she most likely suffered a mechanical lower back problem.[31]
[31]PCB 61
46 Dr Barton, in his later report in 2010, noted on examination:
“She was strong symptom and disability focused. She generally moved in a slow and tentative manner. She walked with a limp, favouring the right leg and had some difficulty walking on the heels and toes.
…
Specific examination of the back showed a wide area of exquisite tenderness to light palpation.”[32]
[32]PCB 65
47 Dr Barton summarised his findings on examination as follows:
“On physical examination she again presents with a range of features that point towards a significant degree of functional overlay. Of concern on this occasion were the increasing symptoms with axial loading, the discrepancy between her limited straight leg raising and postures noted at other time[s], the non-anatomical sensory changes and the generalised weakness throughout the right leg.”[33]
[33]PCB 66
48 Dr Barton was of the opinion that the plaintiff had developed a mild mechanical low back problem that has been complicated by the onset of abnormal illness behaviour. In his opinion, the plaintiff was able to commence her home help work and personal care work for her pre-injury hours.[34]
[34]PCB 66-67
Mr Peter Battlay
49 The plaintiff was examined on behalf of the defendant by Mr Peter Battlay, orthopaedic surgeon, and he reported on that examination on 20 December 2010. Mr Battlay, on examination, found that the plaintiff had a 1.5-centimetre wasting of the right calf muscle. He noted in his examination that the plaintiff, when walking, favoured her right leg. He also noted that the plaintiff, when being examined for left lateral flexion, was restricted with spasm, as was the extension.[35]
[35]PCB 71
50 Mr Battlay was of the opinion that:
“She has an L2/3 disc protrusion without radiculopathy.
…
She does have spasm and evidence of sciatic nerve root irritation, as well as limited movements, but there is no loss of motion segment integrity.”[36]
[36]PCB 71
51 Mr Battlay’s findings are somewhat different to Dr Barton’s. It is clear from Mr Battlay’s report that he finds that the plaintiff does have some radiculopathy into the lower right limb as a result of the back injury that the plaintiff suffered at work.
Associate Professor John A L Hart
52 Associate Professor John A L Hart, orthopaedic surgeon, examined the plaintiff on behalf of the defendant. His report is dated 14 June 2011. Professor Hart took the following history from the plaintiff:
“On 10 September 2010 a cartilaginous tumour was removed from her left arm by Professor Peter Choong and she is still recovering from that operation. She was quite adamant that the condition of the left arm was not related to her work and she has not put in a claim for that condition. The tumour, which was a benign cartilage tumour, was diagnosed in 2009 by Mr Brighton-Knight. The tumour was removed and a plate inserted.”[37]
[37]PCB 80-81
53 The plaintiff has not worked since that operation. I note that the diagnosis for the tumour was made by Dr Brighton-Knight in 2009. The latest report from Dr Brighton-Knight in the Court Book is dated prior to that diagnosis on 11 December 2008.
54 Professor Hart took a history from the plaintiff that she had suffered intermittent low back pain for some years, which had been treated with massage. She stated that she had no other muscular-skeletal disease.[38]
[38]PCB 81
55 Professor Hart, in examination, noted that the plaintiff:
”… walked with an apparent antalgic gain on the right. She was able to stand on her heels and toes, but this did induce low back pain.”[39]
[39]PCB 82
56 Professor Hart did not elicit any spasm during his examination of the plaintiff’s lumbar spine. He did note that the plaintiff had a positive response to axial loading.
57 Professor Hart, in summary, stated:
“… an acute lesion at L2-3 to the right which has compressed the L3 nerve root. This has been present since the initial scan on 21 May 2008 and has persisted since. It is likely that this lesion occurred as a result of the injury on 24 April 2008.
Since the initial scar there has been a small central protrusion develop at L4-5, which is not producing any nerve root compression, but was slightly indenting the theca. There is long standing disc narrowing at L5-S1, without a protrusion.
It has been considered that the lesion at L2-3 has been the symptomatic lesion following the injury at work, although she had suffered from low back pain for some years, which is almost certainly related to the changes at L5-S1.”[40]
[40]PCB 83-84
58 Professor Hart was of the opinion that the sensory symptoms over the lateral aspect of the right leg could be attributed to the L5 nerve root. He was of the opinion that the L5 nerve root could be an extension of the disc protrusion at the L4-5 level which appeared initially in the reportage on 9 October 2008.[41]
[41]PCB 84
59 In the summary of his report, Professor Hart stated as follows:
“Examination of her lumbar spine and lower extremities suggested that there were functional elements involved, as there were a number of positive Waddell features, as described in the report; she had a negative Slump test, a positive response to axial loading and collapsing weakness of the right foot.
… there is evidence of a definite organic lesion at L2-3 and her initial assessment by Mr Brighton-Knight fitted well with a lesion at that level.
In this particular case it is difficult to differentiate the effects when there is an organic and a functional component present simultaneously.”[42]
[42]PCB 85
60 Professor Hart prepared a report dated 18 January 2012. He took a history that the plaintiff was continuing with the medication of Lyrica and Nurofen for pain. Professor Hart found on examination that the plaintiff walked with an antalgic gait on the right and that she was unable to stand on her heels and toes without difficulty.[43] He noted that there was a diminished sensation of the entire right lower extremity compared with the left. He went on also to state that she had a positive cranial compression test.[44]
[43]PCB 88E
[44]PCB 88E
61 Professor Hart concluded as follows:
“The plaintiff’s presenting condition is of persistent low back pain and intermittent right lower extremity pain related to a disc protrusion at L2-3, and chronic L5-S1 disc degeneration.
Her lumbar spine condition has been complicated by the development of abnormal illness behaviour and a chronic pain syndrome.[45]
…
There is certainly no evidence of significant irritation of the right femoral nerve root, because her femoral stretch test is negative.
The severity of her L5-S1 chronic disc degeneration does not appear sufficient to explain the very marked limitation of movement of the lumbar spine. There is no evidence of any significant radiculopathy or sciatica.”[46]
[45]PCB 88F
[46]PCB 88H
62 In summary, Professor Hart accepts that the plaintiff is suffering from some pain from her lower back and into her leg. He is unable to properly quantify the level of disability due to the functional features or functional overlay that he has determined the plaintiff exhibits during the course of his examinations.
Mr David Brownbill, Neurosurgeon
63 Mr Brownbill examined the plaintiff on behalf of the plaintiff’s solicitors for medico-legal purposes. His report is dated 16 December 2011. On examination, he found that the plaintiff walked with an antalgic gait and a right sided limp but was unable to walk on her heels and on her toes. He found that there was marked tenderness low on either side of the lumbar spine but no palpable guarding.[47]
[47]PCB 91
64 Mr Brownbill set out his opinion as follows. The plaintiff:
“… had decreased sensation over the outside of her right lower leg. There was no other neurological abnormality. There was no objective signs of radiculopathy.
…
… I consider that on probability this lady in that work activity sustained aggravation of pre existing asymptomatic lumbar spine degenerative changes with likely associated intervertebral disc derangement.
…
It is unlikely that any untoward neurological sequelae will occur, but should in the future signs of radiculopathy develop then consideration would need to be given to surgical intervention with decompression.”[48]
[48]PCB 92
65 Mr Brownbill was of the opinion that the plaintiff would be unable to return to her pre-injury employment as a personal carer. He was of the opinion that the plaintiff could return to work involving lighter duties as long as she avoided physical activities which required heavy lifting, forced spinal mobility or repeated bending or prolonged standing or sitting.[49]
[49]PCB 92-93
66 In conclusion, I accept that, based on the medical opinions and the acceptance by the doctors of the reported radiology of CT scan on 9 October 2008,[50] the MRI scan on 22 December 2008,[51] and the CT scan of 11 February 2010,[52] that the medical evidence concludes that there is a physical cause for the pain that the plaintiff complains of in her lower back, with some referred pain down her right leg. The medical opinion, whilst not unanimous, also notes a functional overlay or functional features being exhibited by the plaintiff. These reservations by the medical opinions include her general practitioner, Dr Shamoun.
[50]PCB 27
[51]PCB 28-29
[52]PCB 30
The Credit of the Plaintiff
67 The plaintiff has given evidence that the reason she is not working at the current time is due to an unrelated injury and surgery which occurred to her left shoulder in September 2010. Up until the time that she had that surgery, the plaintiff was employed, albeit for lesser hours, of seven hours per week, but as a personal carer. Her evidence was that she was unable to work any more than seven hours per week prior to the shoulder surgery due to her back injury.
68 The plaintiff claims in this application for injury to her lower back and the consequences flowing from that accident which occurred on 24 April 2008. Prior to that injury, the plaintiff had been the recipient of massages to her back by her cousin. The reason for these massages, she said, was for niggles in her back. Her general practitioner stated that she had a pre-existing degenerative low back condition.
69 The principal attack on the credit of the plaintiff was by way of showing a film on DVD video for the dates of 26 June 2011 and 1 July 2011. The plaintiff was show on video on 26 June 2011 to attend at a soccer game. The film, whilst not running continually, ran for the period of some two and a half hours. In the pieces of film shown, the plaintiff was seen to be setting up chairs and otherwise moving around in a reasonably comfortable manner. It was clear that she limped when she walked, which was consistent with her evidence and the observations made by the medical examiners.
70 At one stage in a break in the soccer game, the plaintiff attended at the huddle. In the course of the huddle, the plaintiff commenced massaging a person who appeared to be the goalie. The massaging originally took place whilst the goalie was standing and then the goalie lay face down on the ground. The plaintiff squatted down and continued massaging the back of the player. This went for some considerable minutes. At the completion of the massaging treatment given by the plaintiff, the plaintiff stood up from the squatting position without assistance or any apparent difficulty.
71 As the plaintiff walked away from the huddle, it was clear that she was still limping in the manner that she had done beforehand. To my observation, the method of movement around the massaging of the soccer player and also setting up the chairs and other facilities at the soccer game, clearly showed that the plaintiff had an ability to do far more physical activity than she had told the doctors.
72 This finding does not take away from the observations of the plaintiff in respect to consequences for her on a basis of pain and suffering. The main impact of this video evidence is that the plaintiff has a greater capacity to engage in some form of employment than she had been telling her medical practitioners and the Court.
73 Overall, I accept the plaintiff is giving a fair and honest description of her difficulties arising form the injury to her lower back.
Video Surveillance
74 In this application, the plaintiff was shown video surveillance of her activities at soccer on 26 June 2011. She was also videoed for a shorter time on 1 July 2011 when shopping. The total surveillance film ran for approximately 40 minutes. There is no submission or evidence about the total amount of surveillance conducted on the plaintiff. The Court has to be conscious of the context and the content of the surveillance film of the plaintiff when assessing its impact upon the plaintiff’s credibility.
75 I have previously set out in these reasons the conclusions I have drawn as a result of the activity performed by the plaintiff on the video surveillance. She was able to squat and stand up without apparent difficulty. She was able to move furniture about and she was able to be seated in a comfortable manner for some considerable time watching the sport. I accept that it is difficult to assess, but on my observation, the plaintiff seemed to be enjoying her day at the soccer and was engaging with other people in a very appropriate manner.
76 I have carefully considered that this video relates only to two days of the observation of the plaintiff. On both of the two days, the plaintiff was seen to be limping when she walked. The doctors have commented on this limp in the course of their reporting on medical examination. The activities that the plaintiff was involved in on the day at the soccer ground indicates to me that she has a greater capacity to involve herself in light duty employment than she was giving evidence about and what she had reported to the doctors.
The Consequences for the Plaintiff
77 I have read the affidavits of the plaintiff sworn on 3 March 2011 and 23 February 2012. I have considered the evidence given on affidavit by the plaintiff and her oral evidence which was tested by Mr Middleton in cross-examination. I have assessed the plaintiff as a reasonably straightforward person who is preoccupied with the limitations to her physical capacities as a result of the low back injury. She is someone who has continually sought treatment for her pain and continued physical limitations and hence does not present as a stoical person.
78 The consequences that the plaintiff has suffered as a result of the injury to her lower back are as follows:
Sleep
79 In her affidavit dated 23 February 2012, the plaintiff stated:
“The pain in my back continues to affect my sleep. Generally speaking I am able to get to sleep ok but when I roll over in the middle of the night, the pain tends to get me up. When the pain is really bad, sometimes it is accompanied by migraine.”[53]
[53]PCB 15 at paragraph [8]
80 In an earlier affidavit, the plaintiff stated that the pain stopped her from getting a good night’s sleep. She was cross-examined about this statement:
Q: “To conclude, in your affidavit, the first one, you at paragraph 15, p.11 say this, this is as at 3 March 2011, ‘The pain stops me from getting a good night’s sleep.’ Are you referring to the pain in your back or your shoulder?---
A: The pain in my back and my leg.
Q: Can I suggest to you that on 30 November 2010 in the Quebec Back Pain Disability Scale, that is about three or four months earlier, you were asked this, No. 2, ‘Sleep through the night?’ You have ticked zero, ‘Not difficult at all.’ Are you saying things dramatically altered between 30 November 2010 and 3 March 2011?---
A: It’s not every night that I can’t sleep because of back pain.
Q: Let me ask you this. Do you think those two statements are reconcilable one to the other, ‘Sleep through the night: not difficult at all,’ versus, ‘The pain stops me from getting a good night’s sleep’?---
A: Well, sometimes it does.
Q: Do you think they are reconcilable, they can sit with one another, they are not inconsistent?---
A: I don’t understand.
HIS HONOUR: The answer was she does not understand.
WITNESS: I don’t – what are you trying to say?
MR MIDDLETON:
Q: I am suggesting in those two statements four months apart, are inconsistent, what do you say?---
A: Yes.”[54]
[54]T 45, L8-29
81 The plaintiff properly concedes that the statements made in the Quebec Back Pain Disability Scale are not consistent with her affidavit. However, I accept that the plaintiff is suffering from sleep disturbance as a result of the pain and that she has difficulty in obtaining proper rest in the evening. This is a very considerable consequence for her arising out of the injury to her lower back.
Pain
82 The plaintiff, in her affidavit dated 3 March 2011, states:
“My symptoms and pain are worse when sitting and standing. I have pain around the back of the right buttock and it goes down into the calf. Sometimes I have pins and needles in the back of my right leg. The lower right side back paid that I suffer can best be described as a burning sensation which spreads.”[55]
[55]PCB 10 at paragraph [13]
83 In her evidence, the plaintiff spoke about her pain. The evidence was as follows:
Q: “You also told Mr Middleton that you believed that in the past year or so your condition has worsened. Could you tell his Honour what it is about your condition which has worsened?---
A: I tend to get a lot more pain.
Q: Where?---
A: In my back and when it’s cold, I tend to get more pain and it runs down my leg as well.
Q: Is your leg pain worse now than what it was 12 months ago?---
A: Yes.
HIS HONOUR:
Q: When you say a leg pain, are you talking about your right leg?---
A: Yes, my right leg.”[56]
[56]T 56, L3-12
84 I accept that the plaintiff suffers from pain in her lower back and referred pain down her right leg. On occasions, it is more severe than others. I find that the level of pain experienced by the plaintiff is significant and that it is a continuing and considerable consequence for her.
Medication
85 The plaintiff, in her evidence, stated that she was taking Lyrica for pain relief. In her affidavit dated 23 February 2012, she sates as follows:
“… However I have now been taking Lyrica for quite a long time. I was supposed to be on 2 Lyrica tablets per day, one in the morning and one at night, but because I was finding that it was making me drowsy, especially when I was working with the Defendant, I was taking them mainly at night.”[57]
[57]PCB 16 at paragraph [11]
86 Professor Hart also took a history from the plaintiff in respect of medications. Professor Hart noted that the plaintiff was taking Lyrica and Nurofen for pain. She also takes other medications for diabetes and high cholesterol.[58]
[58]PCB 88D
87 It is clear from the medical opinions that the ongoing need for the plaintiff to take medications is permanent. The medical examiners find that it is a reasonable mode of treatment for her. I find that the need for the plaintiff to take medications of Lyrica and Nurofen a very serious consequence for her and that she continues to take the medication is a sign she needs that medication for her current pain levels.
Lack of Mobility
88 The plaintiff has given evidence that as a result of her low back injury, she has difficulty sitting for prolonged periods.[59] The plaintiff is limited in the amount of driving she can do because of this sitting difficulty. The plaintiff is also restricted in the movements of bending and twisting. The net effect of all of these limitations of movements is that her choices of work and ability to engage in all of the activities of daily living are somewhat impaired. An example of this is that the plaintiff says that as a result of her low back injury, she can no longer mow the lawns.[60]
[59]PCB 16 at paragraph [9]
[60]PCB 18 at paragraph [16]
89 I find that the limitation of mobility and flexibility for the plaintiff is a consequence of the injury to her lower back but do not accept that it is of a significance that the plaintiff attributes to it. The plaintiff is able to perform all of the household chores to live independently of any assistance.
Line Dancing
90 The plaintiff, in her affidavit dated 23 February 2012, states that prior to her injury she used to attend line dancing on two occasions each week. She stated that she had started this line dancing activity after she had broken up with her husband and found it a very enjoyable experience.[61]
[61]PCB 18 at paragraph [18]
91 In her evidence, the plaintiff was cross-examined about stopping the activity of line dancing. The plaintiff stated as follows in her evidence:
Q: “When did you stop it or have you stopped it?---
A: I have stopped two years now, I haven’t been able.
Q: So almost since your shoulder operation?---
A: Yes.
Q: Is that the reason you stopped doing it?--
A: No. I actually stopped before my shoulder operation.
Q: Well you just agreed with me you stopped at the time of your shoulder - - - ?---
A: Around, but before my shoulder operation.
Q: Well were you doing line dancing before your shoulder operation?---
A: No.”[62]
[62]T 19, L20-29
92 The plaintiff gave evidence that she continued line dancing for approximately twelve months after the accident causing the injury to her lower back. In re‑examination, the plaintiff gave the following evidence.
Q: “Mr Middleton asked you some questions about you ceasing line dancing. Can you tell his Honour why it was you ceased to participate in line dancing?---
A: I ceased line dancing because I couldn’t keep up with some of the new dances that were being done, they were too physical for me, so I chose to stop.
Q: Why couldn’t you keep up with them?---
A: Because there was a lot of jumping and there was a lot of twisting and there was a lot of side stepping, and yes, it was just too hard for me.”
Q: How much pleasure were you deriving out of line dancing when you were participating in it?---
A: Heaps.”[63]
[63]T 55, L20-30
93 I accept that the plaintiff, as a result of the injury to her lower back, can no longer participate in the activity of line dancing. The social outing and interaction that is now denied her because she no longer participates in line dancing is a very considerable consequence for her.
94 I conclude that, when gathered together, these consequences outlined above amount to what can be fairly described as being more than significant or marked and as being at least very considerable pain and suffering consequences for the plaintiff.
Loss of Earning Capacity
95 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, she must establish that:
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
96 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
97 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
98 In this case, the parties were unable to quantify in dollar terms the “without injury” and “after injury” earnings of the plaintiff. There was a great deal of evidence and cross-examination of the plaintiff about her income over the period 2004 to 2011. The plaintiff’s taxation returns for those years were Exhibit 2. The evidence about the plaintiff’s income in this period was complicated by the sale of cattle in the process of settling the matrimonial property with her ex-husband. Exhibit B, the affidavit from Lou Perta, accountant, attempted to explain the income earnings of the plaintiff.
99 The income of the plaintiff from personal exertion was tabulated and set out at Court Book page 7. The “without injury” figure for the plaintiff is best represented as $15,698 (year ending 30 June 2009). The “after injury” earnings is complicated because the plaintiff stopped working altogether as a result of an unrelated condition and surgery in September 2010. Up to the cessation of work, the plaintiff earned $12,481.00 gross for the year ending 30 June 2010. If $12,481.00 is the “after injury” earnings, then clearly the plaintiff fails to establish a greater than 40 per cent loss of earning capacity. I find that the gross earnings of $12,481.00 are a minimum figure the plaintiff could earn in a light duties carer occupation with her current medical condition.
100 The plaintiff’s submissions were that the hours of work were to be assessed in order to determine if the plaintiff had suffered a 40 per cent loss of earning capacity. In her evidence, the plaintiff, after confirming that the two affidavits that had been sworn by her were accurate, added this further piece of evidence.
Q: “How many hours per week were you working before the injury?---
A: Between 20 and 25 hours.”[64]
[64]T 9, L26-27
101 The plaintiff’s case was that she could work no more than seven hours a week in a light duties carer role after her injury. The evidence is that the plaintiff continued to work in her capacity as a personal carer up until her operation of September of 2010. The operation to her left shoulder has no bearing whatsoever on any injury to her lower back. The position is that the plaintiff is still not prepared to go back to work until she has been cleared by Professor Choong, who was the operation surgeon in respect of her left shoulder. The evidence in this regard was as follows:
Q: “What about December 2010, did your GP make application for you to have Social Security payments because of your shoulder in December of 2010?---
A: Professor Choong actually filled the forms out.
Q: But he did it for your shoulder and you remain on Department of Social Security payments because of your shoulder today?---
A: Yes.
Q: You have got no intention of returning to work until you get a clearance from Professor Choong in the middle of this year?---
A: He has to give the okay, yes.
Q: That is the reason you are not working?---
A: Yes.”[65]
[65]T 12, L4-14
102 Clearly, from this evidence, the plaintiff concedes that the reason she is not working now is her shoulder injury and subsequent surgery in September 2010.
103 The plaintiff, in her affidavit dated 3 March 2011, stated:
“In terms of future employment, I could not do 20 hours per week. I think I would struggle at about 10-12 hours per week but I would certainly give it a red hot go. However, I would have to do very easy work. When the pain is really bad I want to go and have a lay down.”[66]
[66]PCB 11 at paragraph [14]
104 In her later affidavit dated 23 February 2012, the plaintiff stated:
“In terms of work I was working with the Defendant 7 hours a week over 3 days, per week, performing companion work until about September 2010 … .”[67]
[67]PCB 15 at paragraph [4]
105 The plaintiff also gave evidence that she had performed seven-hour shifts prior to her surgery in September 2010. The plaintiff’s evidence on the seven-hour shift was as follows:
Q: “… After the injury you could do your whole seven hours in one shift?---
A: If I was required, yes.”[68]
[68]T 10, L13-14
106 In re-examination, the plaintiff was asked about the seven-hour shifts, and the following exchange occurred:
Q: “On how many occasions in total did you work a seven-hour shift?---
A: Probably about four or five.
Q: When you did work the seven-hour shift what effect, if any, did it have on your?--
A: I was – by the end of the seven hours I was very, very tired, I'd go home and I'd get changed and lay on the mattress and sleep for like two hours.
Q: How many seven-hour shifts per week did you work?---
A: One.”[69]
[69]T 54, L9-15
107 The plaintiff has clearly been able to remain at work for seven hours in one straight shift. This occurred after her low back injury but before her left shoulder diagnosis and treatment. In her evidence, she deposes that as a result of such a shift, she was in great pain and disability.
108 I find that the plaintiff could perform more work than the seven hours per week.
109 If the base figure for her previous employment, that is prior to injury, was twenty to twenty five hours per week, and if the plaintiff can work more than fourteen hours per week at the same pay rate, she has failed to satisfy the statutory test for loss of earning capacity.
110 The medical evidence in this regard is instructive.
Dr David Barton
111 Dr Barton, after reviewing the workplace, formed this opinion:
“Having had the opportunity to review the available duties I see no reason why the worker could not increase her pre-injury hours. I believe she could immediately increase to 15 hours of work per week and then after two weeks to increase to her pre-injury 25 hours per week.”[70]
[70]PCB 60
112 In his later report dated 25 January 2010, Dr Barton stated:
“I believe she should really be able to do home help work and personal care work for her pre-injury hours.”[71]
[71]PCB 67
Professor Hart
113 Professor Hart examined the plaintiff. In respect of the work situation, he stated as follows:
“Basically, she would be able to work in positions where she could alternatively sit and stand.
1Call or Contact Centre Worker – she could work in this role if she could alternatively sit and stand.
2Ticket Sales – she would be unable to work on transport vehicles, but would be able to work in a fixed site, if she could alternatively sit and stand.
3Secretary – she stated that she does have the skills to work as a secretary and this would be a suitable position, although she lacks computer skills.
4 & 5Nursing Support, Personal Care Worker and Aged and Disabled Care – she was not performing any physical work prior to her left upper extremity operation, because of the need to physically assist aged and disabled clients and she would be unsuited to this occupation. She would be able to perform some aspects of personal care, but her physical capabilities would be limited.”[72]
[72]PCB 86
114 In his later report, Professor Hart notes that the plaintiff had no intention of considering work until after she had been assessed by her treating surgeon in June 2012 for her left arm.[73] Professor Hart was of the view that she could readily perform her previous seven hours per week from the point of view of her back.[74] Finally, Professor Hart’s view was that:
“In general the plaintiff showed very little inclination to consider any of the positions which I discussed. The best prospect of her returning to work would be to have her return to work with her former employer, but she has made no effort to maintain contact with her employer since her arm operation.”[75]
[73]PCB 88D
[74]PCB 88H
[75]PCB 88I
Mr David Brownbill
115 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on behalf of the plaintiff’s solicitors. He stated his opinion in respect of work as follows:
“From a physical neurological point of view I consider this lady would be able to attempt a return to work program involving lighter duties and avoiding the physical activities I have referred to above and with the ability to stand or sit at will. Such an attempt would need to be made in a graded fashion and under close medical supervision to determine her responses. The number of hours she could work would be dictated to by the responses to such physical activity however I consider on probability she would not be able to return to full time activities.”[76]
[76]PCB 93
116 It is clear from Mr Brownbill’s report that he does not consider the plaintiff could work full-time. However, if the plaintiff was able to obtain light duties, he certainly supported the idea that the plaintiff could work a considerable number of hours as long as she was graded back to work under medical supervision.
Dr Zhang
117 Dr Zhang had certified the plaintiff as suitable for work up to a period of fourteen hours, depending on the availability of light duties.[77]
[77]PCB 141
118 Dr Shamoun, the current general practitioner, has certified the plaintiff unfit for work at this point in time.[78]
[78]PCB 155
119 I conclude that the plaintiff has failed to establish that she has suffered a loss of earning capacity greater than 40 per cent as required under the Act. I find that the plaintiff has a work capacity in light duties on a part-time basis which is at least fourteen hours per week but more likely to be in the order of twenty hours per week. That is close to her pre-injury part time work.
120 I conclude that, based on the evidence in this case, I am not satisfied the plaintiff has suffered a loss of earning capacity to the extent of a 40 per cent reduction in her gross “without injury” earnings. Further, I am not satisfied that her condition or inability to work is permanent in the sense of the foreseeable future. The plaintiff is currently not working due to an unrelated medical condition.
121 The plaintiff’s application for serious injury certificate for loss of earning capacity is refused.
122 As previously stated, after consideration of all the evidence, I am of the view that this a finely balanced case, but ultimately, taking into account all the consequences suffered by the plaintiff as a result of her low back injury, I am satisfied that such consequences when judged by comparison with other cases in a range of possible impairments, can be fairly described as being more than significant or marked and as being at least very considerable.
123 Accordingly, pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceedings for pain and suffering damages in respect of the low back injury suffered by her on or about 24 April 2008.
124 I will hear the parties on costs.
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