Cousins v Southwest Health Care
[2012] VCC 1482
•12 October 2012
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00402
| CLAIRE ELLEN COUSINS | Plaintiff |
| v | |
| SOUTH WEST HEALTH CARE | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 2 and 3 October 2012 | |
DATE OF JUDGMENT: | 12 October 2012 | |
CASE MAY BE CITED AS: | Cousins v Southwest Health Care | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1482 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – injury to the lumbar spine – pain and suffering only – whether consequences to the plaintiff are serious
LEGISLATION CITED – Accident Compensation Act 1985
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird with Mr D Seeman | Stringer Clark |
| For the Defendant | Mr P Elliott QC with Mr J Batten | Lander & Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 19 June 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.
12 The plaintiff relied upon two affidavits and she was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
13 The plaintiff is presently aged twenty eight, having been born in December 1983.
14 In cross examination, the plaintiff confirmed she had had ongoing migraines since the age of twelve or thirteen and had seen a neurologist, Dr Yerra, and also an osteopath, Ms Eberbach, in 2007 for treatment. There were no problems with sleeplessness associated with the migraines, although the plaintiff agreed that when she saw the osteopath in April 2007, her sleep was poor.
15 After finishing school, the plaintiff completed a Bachelor of Nursing at La Trobe University between 2003 to 2006, and thereafter, commenced a graduate year at Warrnambool Base Hospital (“the Hospital”).
16 While at university, the plaintiff played netball occasionally as a fill-in. She played tennis socially and participated in cardio aerobics a couple of times a week. She was very keen on sport and on keeping fit.
17 The plaintiff stopped netball when she started working with the defendant, as she was working shiftwork, but continued to go to the gym and intended to go back to netball if her work hours became more suitable.
18 Prior to the incident, the plaintiff was also involved in body contact aerobics, which was like a very strenuous marshal arts dance. She had been involved in that activity since Year 12.
19 Before the said date, the plaintiff had been working in what was known as the “heavy ward” where many patients were either in palliative care, suffering from dementia or were long-term stroke victims.
20 A lot of the patients were bedbound and there was, consequently, a lot of lifting and bending required by nursing staff. At times, the plaintiff attended six patients at a time, getting them in and out of bed and showering them.
21 As a graduate nurse, the plaintiff was given a lot of heavy work and a number of shifts. While working in the heavy ward, she often went home very tired and sometimes felt the strain or ache in her low back.
22 On commencing at the Hospital, the plaintiff had the choice of which wards on which she wanted to work on three-month rotations. She started in the surgical ward and then went to the medical ward for the second rotation.
The Incident
23 On or about the said date, whilst working in the medical ward, the plaintiff noticed a patient attempting to manoeuvre herself onto a wheelchair. While trying to assist the patient, the plaintiff felt an extremely sharp pain in the low back and buttocks, and within a few minutes she also felt referred pain into her legs (“the incident”).
24 In cross examination, the plaintiff described how she felt pain on the right side of her lower back when she used her right hand to grab the wheelchair to stop the patient from falling. The plaintiff demonstrated the site of her pain as being above her belt in the middle of her back above her right buttock.
25 The plaintiff also agreed that on straining to save the patient, she felt a strain in her upper back, and to the osteopath, she complained of aching and occasional stabbing through the lower spine, with some referral along her back towards her right shoulder.
26 The plaintiff could not recall the osteopath organising an x‑ray, but she did understand that investigations around that time were normal.
27 The plaintiff deposed that she did not think much of the incident at the time. It was a little more severe than any pain she had had in the past, but she thought she would just get over it. Over the following weeks, she had time off work, initially two weeks.
28 The plaintiff had pre-organised holidays in August 2007 for two weeks and thereafter, returned to the acute ward, where she stayed.
29 The plaintiff agreed she was initially certified fit for normal hours but lighter work.
30 In cross examination, the plaintiff described how she stayed on the medical ward for a few weeks and then she was moved to the acute ward. She did not rotate again, completing her graduate year at that location. Her duties there were light and she was not required look after bedridden or wheelchair-bound patients.
31 The plaintiff, in that time, asked that she be moved to the short stay or paediatric ward where there would be less lifting involved. She was then worried that she was getting pushed around by the Hospital to whatever duties suited it rather than taking her injury into account.
32 This did not occur because it suited the Hospital for the plaintiff to be on light duties in the acute ward and it was considered it would be better for the plaintiff’s back condition that she continue working in the acute ward.
33 Whilst in the acute ward, the plaintiff was allocated only light duty patients or she was a “floater”, just assisting other staff and not looking after a patient group. The plaintiff was mainly doing medications, assisting with patients on a lesser scale with their hygiene and washing and some light lifting work. She continued her pre-incident hours at .8 working four shifts per week, but she could not cope with working weekends or late shifts.
34 The plaintiff continued to have constant pain. She took over-the-counter medication and also continued to have flare ups from time to time, to the extent she had to sit down and was unable to do anything.
35 The plaintiff had increasing pain at night and had trouble sleeping. Prolonged sitting, driving, and lifting and bending were becoming increasingly difficult. The plaintiff was quite positive about her treatment and tried osteopathy, physiotherapy, exercise, physiology, swimming, massage, walking and Pilates.
36 On a couple of occasions, the plaintiff’s working restrictions were relaxed and she nearly returned to normal duties without heavy bending and lifting but each time there would be a flare up and not long thereafter, she had to go back on light duties.
37 In cross examination, the plaintiff agreed her back pain could have been gradually improving in October 2007 as it would often improve then flare up again. She was then having Pilates.
38 As of November 2007, the plaintiff was working a maximum of two days in a row, avoiding lifting and showering patients. She then had a flare up at work and her pain became worse. At that time, she experienced pelvic pain, which was part of her low back pain. She had good and bad weeks.
39 In November 2007, a new area of referred pain in the thoracic spine developed and the plaintiff was then given two days off work.
40 The plaintiff agreed that she was getting certificates permitting her to work .8 between May and August 2008 with a lifting restriction of fifteen kilograms which really involved not pushing patients in a wheelchair. At the end of that period, she was certified fit for nursing duties but to adhere to the lifting policy. She resumed normal duties for a few days but then again developed further symptoms. Prior to that time, whilst her symptoms had settled, they had never gone away. In October 2008, the lifting restrictions were re-imposed.
41 The plaintiff gradually came to the realisation it was always going to be impossible for her to do full time hospital nursing duties. In cross examination, the plaintiff agreed she discussed changing her work strategies with a rehabilitation provider in the first year after her injury.
42 In November 2008, the plaintiff obtained a job as a practice nurse at the Warrnambool Medical Clinic (“the Clinic”), initially working Monday and Tuesday at the Hospital and then Thursday and Friday at the Clinic. In re‑examination, the plaintiff explained that she was working two days on and two days off to give her back a spell.
43 In December 2009, the plaintiff commenced full time work at the Clinic.
44 The plaintiff had a rear impact transport accident in early 2008, as a result of which she suffered a whiplash injury involving her neck and back. She believed she recovered from those injuries shortly thereafter. In cross examination, the plaintiff confirmed this accident was minor and she received treatment for her back and neck from her usual osteopath and physiotherapist. She did not remember having any time off work as a result of these injuries.
45 In September 2011, the plaintiff deposed that she had low back pain all the time, which she rated around two or three out of ten, but on a bad day, which was three or four days a week, her pain could increase to seven or eight out of ten. The only activities she could then enjoy were walking and water aerobics.
46 Following the incident, the plaintiff had difficulty with housework, in particular, mopping, sweeping, vacuuming and cleaning the bathroom. The plaintiff continues to pay for a cleaner, who attends her home once a fortnight. The plaintiff has not applied to the insurer for assistance. It took two years for her to get approval for water aerobics and even then she had to submit and account every few weeks, hence she was not going to be bothered claiming the cleaning costs of $20 per fortnight.
47 In her most recent affidavit sworn in September 2012, the plaintiff confirmed she avoids heavy housework. Her contribution to the housework is limited to mainly tidying and putting things away. The cleaner does the heavier work and if the plaintiff does any of these duties, she does so in short stints. These activities cause an increase in the plaintiff’s pain.
48 The plaintiff misses her job at the Hospital. She was very proud she achieved a university qualification. All her life she had planned to work as a Division 1 Nurse on the wards.
49 The work at the Clinic is not as demanding and the plaintiff does not have the same sense of vocation. She enjoyed hospital life, working with other nurses, doctors and many of the patients.
50 The plaintiff presently works on a roster with nine other nurses at the Clinic. She carries out immunisations, having completed a three-month course in 2010. She has looked at further wound care study.
51 The plaintiff also examines burns and does blood sugar tests. She is involved in drawing up patient care plans, which she does on the computer – a job which involves a fair bit of sitting to make entries.
52 On average, the plaintiff sees forty to fifty patients a day of varying ages. She has worked up to five days in a row and at times worked for fifty five hours a week but not more than sixty hours.
53 The plaintiff agreed that in 2012, her income was just short of $71,000 and the previous year she earned $65,500. The plaintiff confirmed that as a graduate at the Hospital she earned less than $30,000 per annum. She agreed that Hospital nurses are now paid $31 per hour and that she is paid $33 per hour at the Clinic.
54 In cross examination, the plaintiff agreed she enjoyed her Clinic work. She sees whoever comes in, whether they be babies or elderly people. She does not have to do any patient handling or bending. The most enjoyable aspect of her role at the Clinic, apart from pay, is patient interaction in a pretty busy practice.
55 There is nothing the plaintiff does not like doing at the Clinic; it is just she finds it is not acute nursing; it is not hospital nursing. She is happy with less back pain at the Clinic.
56 The plaintiff is able to avoid bending or lifting on most occasions and can vary her position through the day. She is more comfortable most of the day standing and walking and sitting. However, two days a week she is required to do a lot of typing, which flares up her back pain.
57 In cross examination, the plaintiff agreed that at no time before 2008 had she ever made an application to do career nursing in Africa. She became aware of that type of work when doing the immunisation course in 2010. She wanted, however, to nurse overseas after her graduate year. She disagreed that there was hands-on nursing available to her
58 In re examination, the plaintiff explained that she had planned to nurse overseas in the UK, or be involved in acute or theatre, or any other nursing involving fast paced nursing. The plaintiff agreed she had ambitions of being a nurse right from the age of seventeen. She hoped to get into clinical nursing, specialising, but could not do that now or work as a midwife, in theatre or in ICU. The plaintiff could not be a director of nursing.
59 The plaintiff would prefer to be working in a hospital where she could earn more with penalty rates and night duties. She would be earning more at the Hospital, having graduated.
60 The plaintiff continues to wake at night with back pain and at one point got to the stage where she was only waking once a week or so. At present, she wakes almost every night. The Dothep helps, but the plaintiff usually wakes after a couple of hours’ sleep.
61 The plaintiff’s partner, who is now her fiancé, James, is a builder and he often has to get up very early. He consequently sometimes sleeps in the spare room when she has been disturbing him at night.
62 The plaintiff deposed in September 2011 that it irritated her having to avoid a whole lot of minor activities, such as bending, sitting for longer than fifteen or twenty minutes or standing in the one spot.
63 The plaintiff continues to have difficulty going to the pictures or going out for dinner. If she goes for a counter meal, she has to get up all the time and change positions frequently. She tries to keep up with her friends, having had a wide circle of friends before the incident. She is always careful at social functions. It gets her down that since the incident she is constantly avoiding activities that she knows will hurt her.
64 The plaintiff deposed in September 2011 that a number of activities had affected her back in the previous week. On one occasion, she worked from 8.00 am to 7.00 pm and then drove to Geelong. After the drive, her back was aching and in spasm by the end of the day. She needed a hot bath and had to apply heat packs to get to sleep. She had to get up in the middle of the night to take anti-spasmodic medication.
65 The next day, the plaintiff awoke very stiff and went for a walk for half an hour. She then met up with friends, who wanted to go to a film. She declined, as she had to drive home to Warrnambool that day, which meant she would be sitting for three or four hours and then a couple of hours in the theatre. On her return to Warrnambool, she was stiff and sore.
66 The plaintiff did some cleaning around the house, including vacuuming, steam cleaning and mopping. All those activities caused back and buttock spasm and pain. Activities like kneeling, twisting, pushing or pulling were a problem and she had an extremely restless night due to back pain.
67 The plaintiff tried to walk a lot to alleviate her pain and sometimes did lighter water aerobics, which helped a lot. Prior to that time, she had been swimming at Aquazone doing laps. Before her injury, she could probably swim fifty laps but thereafter, was only able to swim maybe ten laps.
68 The plaintiff found it difficult bending and twisting to wash the car. After a couple of hours on the computer at work, her back started to spasm. She attended the physiotherapist and had some dry needling and her back felt a little better, but it was still tender in the evening.
69 The plaintiff deposed in September 2011 that she thought her positive attitude to self maintenance and physical fitness had helped her immensely, but she greatly missed being able to enjoy any competition sport, which had been an enormous part of her life since the day she left school.
70 The plaintiff has not played tennis or netball since she injured her back. She does not do cardiovascular/combat aerobics because of the pain.
71 The plaintiff did not dance at a recent wedding where she was part of the bridal party.
72 The plaintiff recently deposed that her low back condition is basically unchanged, although she seems to get more referred pain than in the past up into her back and occasionally into her legs.
73 The plaintiff’s general practitioner is a partner in the Clinic. The plaintiff does not attend specifically for consultations but she keeps in touch with her doctor from time to time as to her progress.
74 The plaintiff continues to see a physiotherapist once or twice a week. She continues to have physiotherapy on the whole of her spine. That treatment does not really assist with her migraines. She has not seen her osteopath for a few years.
75 The plaintiff attends the musculoskeletal physician, Dr Grave, whom she was initially seeing three monthly but lately, since her referred pain has been worse, she has been seeing him more frequently.
76 The plaintiff can recall initially telling Dr Grave of a four-month history of thoracic and lumbar back pain. The plaintiff confirmed the most intense pain initially was in her lower back. The plaintiff agreed, when saw Dr Grave in November 2007, she told him she felt an instantaneous pain in her back and buttocks at the time of the incident.
77 The plaintiff’s has Lignocaine injections from Dr Grave and also manipulation. The injections have been three monthly but the plaintiff has not had any injections for about six to eight months. Dr Grave’s treatment helps.
78 In cross examination, the plaintiff disagreed she had improved to the extent that Dr Grave described in his 2010 report. She explained that she still requires ongoing physiotherapy and she is under a current care plan arranged by her general practitioner. The plaintiff advised that whilst in Africa she had chronic back pain and that she had had more intensive and more regular treatment with Dr Grave since returning from that trip.
79 The plaintiff continues to take Dothep as a muscle relaxant at night and she also takes Voltaren. In addition, she uses some over-the-counter medication during the day, such as Nurofen and Panadol, and uses heat packs nightly. She does exercises at home taught to her by her physiotherapist, and also exercises to a DVD.
80 In cross examination, the plaintiff confirmed she does stretching exercises at home and attends a body balance class, which she pays for herself. After that class, she has noticed some improvement in her daily back pain. She agreed she could have good and bad days.
81 In 2007, the plaintiff saw an exercise physiologist, Stephen Hall, for strengthening. She found this treatment quite frustrating, as she did not get a lot out of it over a short period of time, perhaps five visits.
82 The plaintiff also takes the occasional Panadeine Forte and she was prescribed Endep for a while before Dothep was prescribed. Prior to the incident, the plaintiff used to take Panadeine Forte for migraines. She only ever took Endep for her back, not for migraines. Dothep helps her to relax and sleep at night. It is not taken as an antidepressant and does not help the plaintiff’s migraines and was prescribed by her general practitioner for low back pain.
83 The plaintiff continues to have pain all the time but in varying degrees. It is at its worst at the end of the day or of if she has been sitting in the car for more than twenty or thirty minutes.
84 In cross examination, the plaintiff agreed that she had a muscular type problem involving a muscle above her right buttock.
85 In re examination, the plaintiff described she suffered referred pain, which involved trigger points in her buttocks and referred pain in her leg, pelvis and thigh. The pain is in the middle and lower right back but can refer higher into the thoracic spine. The pain has not stopped; it is always there.
86 In re-examination, the plaintiff said that she wanted to get up from the witness box and walk around because she was uncomfortable with back pain.
87 Whilst the plaintiff continues to work, she is stiff and sore at the end of the day and when she gets home she stays upright. She would rather lie down on the floor than sit in a chair. Sitting causes her the most problems.
88 Most nights the plaintiff gets a heat pack or takes some Voltaren, and she usually rests for an hour or so before she can get dinner ready for her partner.
89 Since the incident, the plaintiff has not returned to any sport socially or on a competition basis. Her only activities are walking and a body balance routine, which is a sort of Pilates and yoga. The plaintiff confirmed her health fitness regime included yoga, core strengthening and working on a fit ball, in addition to Pilates.
90 The plaintiff continues to be very proactive in her own treatment and is conscious of avoiding activities that she knows will aggravate her pain. When shopping, she only carries a couple of items at a time, whether it be unloading the boot or bringing items in from the car.
91 Intimacy for the plaintiff with her partner can be painful and difficult.
92 The plaintiff can manage pulling washing out of the machine, but takes several trips to the clothesline and throws a lot of the clothes over the clotheshorse inside.
93 In February this year, the plaintiff travelled to Africa with a friend for four weeks.
94 On the trip over, the plaintiff had to get up and walk around the plane a lot of the time. They stayed with a friend and the plaintiff was able to rest when she wanted to. They travelled on well made roads when visiting wildlife parks.
95 The trip was very important to the plaintiff. As a young nurse, she had hoped she might work in a Third World country or simply live overseas and work overseas. From her experience in Africa, she now knows she would not be able to do so.
96 When she was in Zambia, the plaintiff enquired about working there but was told she would have to sleep on the floor, so she could not do the job. She had discussed with her partner working overseas.
97 The plaintiff was cross examined about a number of recent holidays. She could not recall reporting on her return from holiday in Perth in 2009 that she had no back pain, but it could have been the case.
98 The plaintiff went to Europe with a friend in 2009 on a Contiki bus tour. The plaintiff did not do any hiking, nor did she carry a backpack. In 2010, she did a similar Contiki tour to America. On these various overseas trips, the plaintiff just stayed in motels and could not do any of the optional activities, such as white water rafting or bungee jumping.
99 The plaintiff’s partner, James, is renovating their house at present. She would love to help him, whether it be painting or just cleaning up, but she has not been able to help at all because of her back condition.
100 On weekends, the plaintiff goes for a walk for thirty or forty minutes, but otherwise spends a lot of time resting or getting herself into shape for going to work on Monday.
101 James has three nephews, aged four, seventeen months and two months. It upsets the plaintiff that she cannot hold or carry them and cannot even help with the babies. This situation also causes the plaintiff to worry how she will handle pregnancy or look after her own children.
102 The plaintiff can drive a car and go shopping. She has a small dog, which she knows weighs seven kilograms as she has taken it to the vet multiple times, and she can pick it up. The plaintiff bends her knees and moves slowly when lifting the dog and she is not careless with her movements. She has pain but can pick up the dog. To an observer, whilst doing so, she might look at bit stiff or a bit slow, but she can bend down and pick up the dog.
103 In cross examination, the plaintiff was then shown twenty three minutes of film taken on 14 April 2012. She was seen walking around and standing at the supermarket and bakery and talking to some friends. She was shown quickly bending down and picking up her small dog, which she held onto for a couple of minutes.
104 The plaintiff agreed that she could have sat down for an hour or so and not got up to move when with friends at the Warrnambool Hotel.
105 The plaintiff confirmed that she drove up and down from Warrnambool to Geelong regularly to see her parents.
106 The plaintiff was shown various pages from her Facebook, the most recent included photographs taken in 2010. These documents were not tendered.
Lay Evidence
107 James McLeod, now the plaintiff’s fiancé, swore an affidavit on 26 September 2012. He and the plaintiff have been together for approximately eight years and he knew the plaintiff for some time prior to her injury.
108 Mr McLeod deposed there had been a very significant change in the plaintiff since she became injured, mainly in terms of her sleep, with her waking almost every night due to pain.
109 There were certainly things that the plaintiff could help him with in doing renovations if not for her back injury.
110 Socially they are both young and social and like to make an effort to keep in touch with friends. They do go out together but often the plaintiff wants to leave early as her back gives her trouble.
111 Mr McLeod deposed that it would be great to be able to go for a bike ride or a hit of tennis or golf with the plaintiff but because of her injury, she is unable to and that is upsetting for both of them.
112 The plaintiff is dedicated to doing home exercise and some body balancing and uses heat packs nightly. She is motivated to try and manage her pain as best she can.
113 The plaintiff is always up and about moving around as sitting is a real problem for her. Travelling to visit her parents in Geelong causes her pain from prolonged sitting.
114 The plaintiff often comes home from work and complains of being stiff and sore and they have had to hire a cleaner to do heavier household tasks.
115 Basically, the injuries have affected nearly every area of the plaintiff’s life in some way. She is motivated to keep active and manage the pain as best she can but it still causes her a great deal of difficulty.
Medical Evidence
116 The plaintiff was first seen at the Clinic in relation to her back injury on 22 June 2007 when she complained of developing pain in the right lumbar region in the incident. She was prescribed Panadeine Forte and given a week off work. She was diagnosed with lower back sprain facet joint dysfunction after investigations were carried out.
117 The plaintiff was prescribed analgesia and referred for osteopathic treatment and also to Dr Grave for specialist treatment. It was recommended she undertake core strengthening exercises and swimming.
118 Dr Grave gave the plaintiff Lignocaine injections in the triggers and myofascial release. As of May 2011, the plaintiff was having physiotherapy fortnightly for low back pain exacerbations. She was doing water aerobics two or three times a week and needed Panadol and Nurofen twice a week.
119 The plaintiff then stated she had low back pain every day and upper back pain at least once a week. Her pain was worse with bending, lifting more than five kilograms, sitting for long periods and travelling, but she was able to work.
120 Dr Cimpoesu, general practitioner, thought the plaintiff suffered from a chronic condition related to the 2007 injury that could flare up at any time and it was likely she would have intermittent problems into the future.
121 Dr Cimpoesu believed the plaintiff would require ongoing exercises for core strengthening and fortnightly physiotherapy and massage and most likely need anti-inflammatories and analgesics for exacerbation so she could continue to work. She would also need to continue seeing Mr Grave.
122 In the most recent report of June 2012, Dr Cimpoesu set out the plaintiff probably would have ongoing problems with her lower back in the future, some days worse than others, depending on activities. She would need to continue regular exercises and likely require ongoing treatment with Dothep, Voltaren, analgesia, physiotherapy, massage, and she would also continue seeing Dr Grave.
123 Dr Cimpoesu thought the plaintiff’s injury was stable as long as she avoided activities that could exacerbate her symptoms and she continued with current treatment. She noted the plaintiff was not able to do ward work with patients as she had a weight lifting limit of no greater than fifteen kilograms and most likely would have ongoing low back pain in the future. She noted the plaintiff had exacerbations of back pain when sitting or standing for long periods or with more strenuous activities, and that would restrict the type of work she could perform and/or her recreational and social activities.
124 Dr Murray Grave, musculoskeletal physician, has treated the plaintiff for thoracolumbar pain since 2007.
125 The plaintiff initially presented on 15 October 2007 with a four-month history of thoracic and lumbar back pain, which occurred after the incident.
126 Dr Grave reported that the pain had remained variable since that time but caused the plaintiff considerable discomfort in the right gluteal and hamstring region and the posterior right side of her thoracic and lumbar spine. She described the pain as a persistent dull ache which may have exacerbations.
127 The plaintiff advised that by the end of an eight-hour nursing shift she felt quite sore, rating her pain of mild severity during the day, becoming moderate in severity towards the end of the day.
128 Dr Grave noted that since her injury, there had been difficulty resuming full ward duties and the plaintiff had stated that her usual normal working load was beyond her capability.
129 Dr Grave reported on examination that there had been notable muscle spasm on the right in the paravertebral musculature. There had been evidence of right gluteal trigger points present in the right upper lateral quadrant of the buttock compared to the left, which had been a recurring feature.
130 Dr Grave reported in 2010 that over the last three years, the plaintiff had worked very hard to improve her fitness.
131 Dr Grave noted the 2007 CT scan did not demonstrate any significant disc prolapse. It showed minor degenerative changes in the lumbar spine with a mild degree of facet joint arthropathy without any evidence of nerve root entrapment. He noted a mild scoliosis was evident in the lumbar spine and multi level disc degenerative change was noted, with disc space narrowing at all of the lower lumbar levels.
132 Dr Grave also noted the 2007 MRI scan did not identify any evidence of lumbar spinal canal stenosis, substantial disc herniation or nerve root compromise. There was no disc degeneration of focal bony abnormality, nor evidence of any annular fissure, nor was there any evidence of foraminal outlet stenosis.
133 Dr Grave prescribed Endep as a pain modifier, which the plaintiff took in February 2008. He noted the plaintiff’s recovery was interrupted at that time when the plaintiff was involved in a transport accident in which she suffered a whiplash injury to her neck. As a result, she developed some back spasm and headaches and these injuries were resolving when he saw her in February 2008.
134 The plaintiff was then prescribed Dothep as a pain modifier in March 2008.
135 Dr Grave noted, after an initial period off work, the plaintiff returned to modified duties on 9 December 2007, until a flare up in 2008, when a further lifting restriction was imposed. That restriction was lifted slightly between May and August 2008, during which time the plaintiff continued to make good progress. When reviewed in August 2008, the plaintiff was fit to resume normal nursing duties but, unfortunately, she did not cope with heavy patients and the lifting restrictions continued until March 2009, of up to fifteen kilograms. The restrictions were eased in March 2009 when the plaintiff was able to do her normal work and avoid excessive loading.
136 The plaintiff, however, realised full hospital nursing duties had been difficult for her and could involve a lot of bending and heavy lifting and she therefore decided to make a career change from hospital-based nursing to general practice nursing and commenced at the Clinic in November 2008.
137 Initially the plaintiff worked at the Clinic two days a week and for two days a week at the Hospital. By March 2010, she was working full time at the practice. Dr Grave reported the plaintiff was able to self manage by maintaining fitness and paying attention to her core stability.
138 Dr Grave later reported that by mid 2011, the plaintiff was able to manage five days a week at the Clinic without difficulty. She continued to self maintain and she had the occasional flare in symptoms, which would subside with manual techniques and persistence with her fitness regime.
139 Dr Grave concluded the plaintiff was suffering from myofascial pain involving her thoracolumbar spine. Following treatment, the pain, although persistent, became manageable and less intense with less frequency of flare ups.
140 The plaintiff continued to take Dothep, 25 milligrams at night, as a pain modifier.
141 The plaintiff received treatment from Jessica Kerr, physiotherapist, at the Warrnambool Physiotherapy Centre.
142 In a report of 5 July 2010, Ms Kerr noted the plaintiff would never be able to cope with the demands of being a hospital nurse, but was able to work as a clinical nurse, but would have exacerbations of her condition at times, as this was the nature of the condition. Ms Kerr thought that these exacerbations would require treatment to settle down or would progress further, causing the plaintiff pain and affecting function. She noted the plaintiff was having exacerbations of her condition on an average of once a month since commencing work at the Clinic.
143 The plaintiff attended Coastal Osteopathy, where she was treated by Ms Eberbach until the end 2009.
144 Ms Eberbach reported that during that time, the plaintiff was proactive in maintaining gentle regular exercise. As a result of her back injury, the plaintiff’s ward duties were modified and eventually she sought alternate work in a nursing field requiring less physical duties.
145 A Health Review was carried out at the Clinic in April 2012.
146 It was noted that the plaintiff had migraines in Africa and her neck and back pain flared up with travelling. She received a Voltaren injection.
147 It was noted there was neck pan for eight weeks and the plaintiff had seen Dr Grave three times in the last month, and that was settling slowly. The plaintiff had an ultrasound on the neck, which was very tender and tight, and there were muscular and facet joint problems. Further, it was noted the plaintiff had chronic back pain, worse while doing computer work, better when standing.
148 The plaintiff was then seeing Dr Grave three monthly and Ms Kerr once or twice weekly. She was continuing water aerobics, walking and body balance classes. There were three-monthly general practitioner reviews.
Medico Legal Examinations
149 Mr Brearley, orthopaedic surgeon, first examined the plaintiff on 30 August 2011 and re-examined her in August 2012.
150 On initial examination, the plaintiff was working full time in a general medical clinic. She told Mr Brearley of the incident injuries and her various restrictions, and also that she was involved in a transport accident in 2008 in which she suffered a mild neck injury.
151 On initial examination, Mr Brearley noted there was no hint of exaggeration of the plaintiff’s symptoms. There was no deformity or tenderness of the back and a very slight limitation of back movements. Straight leg raising was eighty degrees bilaterally and all deep reflexes and sensation were normal.
152 Mr Brearley had available the September 2007 CT scan of the lumbar spine and MRI scans of October 2007 and 2009.
153 Mr Brearley diagnosed mechanical low back pain as a result of damage to the supporting discs and interspinous ligaments of the lower lumbar spine, occasioned by the bending and twisting incident. He noted there had been no disc prolapse or significant tearing of the lower lumbar disc, although the minor disc bulging seen in the lower lumbar disc did probably represent some intra disc damage. He thought the plaintiff was gradually improving.
154 Mr Brearley noted the plaintiff was then precluded from her normal nursing duties and that that would be the situation for the foreseeable future. He thought she did not have the capacity to perform her pre-injury duties either full or part time. He considered she had to be in suitable employment, noting that she was working in a large general medical clinic in Warrnambool. He noted she worked full time and did the job without any real difficulty, although she did have some aching discomfort in her back most of the time while working.
155 Mr Brearley also noted, as a result of her back injury, the plaintiff had difficulty with heavier aspects of housework and also with shopping. Further, she could not do gardening or mowing the lawns and was unable to play tennis or basketball. She also had difficulty with prolonged sitting on social occasions and difficulty with long standing.
156 Mr Brearley thought the plaintiff needed ongoing conservative treatment. He believed, given it was four years since the incident, her symptoms would continue permanently. There was likely to be no deterioration in her situation and, for practical purposes, it had stabilised.
157 On re-examination, the plaintiff told Mr Brearley there had been no basic change in her condition and there were identical findings on examination.
158 Mr Paul Kierce, orthopaedic surgeon, examined the plaintiff on behalf of CGU in July 2011.
159 The plaintiff then indicated she suffered with central low back pain with radiation into the right buttock and into the back of the right upper thigh with some occasional pain in the interscapular area. She had a degree of backache always, but it varied in intensity. She also complained of sleeping during the night with back pain.
160 The plaintiff was then taking 25 milligrams at night of Dothep as a pain modifier; Nurofen, two a fortnight; Panadol, slightly more frequently, on a bad day, up to six-hourly over twenty four hours.
161 On examination, the plaintiff walked with a limp. She had a slight lumbar scoliosis convex to the right, which was not significant. There was well localised tenderness over the joint between fourth and fifth lumbar vertebra over the right posterior iliac crest and in the right buttock. She had tenderness and spasm in the right lumbar muscles with guarding. Extension was painful and limited by about fifty per cent at normal range. Lateral flexion to the left caused right lower lumbar pain. On attempted spinal flexion, the plaintiff could reach her fingertips as far as her ankles.
162 Straight leg raising was bilaterally limited by tight hamstrings. There were no neurological abnormalities. There was no significant leg atrophy.
163 Mr Kierce had available all the investigations.
164 Mr Kierce thought the plaintiff aggravated lumbar spondylosis in the course of her work and she still had signs and symptoms attributable to aggravation of the lumbar spondylosis. He noted she had guarding in the right lumbar muscles with a non union loss of range of motion, non verifiable radicular complaints with no objective sign of radiculopathy and no loss of structural integrity. He thought her condition had stabilised.
Investigations
165 Dr Yerra organised an MRI scan of the plaintiff’s lumbar spine in October 2007. It was reported there was no evidence of lumbar spinal canal stenosis, substantial disc herniation or nerve root compromise and no disc degeneration or focal bony abnormality.
166 Dr Oppermann, general practitioner, organised an MRI scan of the plaintiff’s lumbar spine on 12 October 2009. It was reported there was minor disc bulging at L3-4 to L5‑S1 without foraminal or central canal compromise.
Compensation Documents
167 The plaintiff lodged a claim for impairment benefits involving the lower back – three bulged discs.
168 By letter dated 7 February 2011, CGU advised the plaintiff’s liability had been accepted pursuant to s98C of the Act in relation to her low back injury suffered in the incident.
The Defendant’s Medical Evidence
169 Ms Eberbach, osteopath, first treated the plaintiff for migraines in April 2007. She continued to treat the plaintiff following the incident. Her clinical notes set out an attendance with the plaintiff on 15 December 2009 in which she noted the plaintiff’s back was great when she was on holidays.
170 Dr Walsh, general practitioner, referred the plaintiff to Dr Yerra, neurologist, on 4 July 2007. He thanked him for seeing the plaintiff for her severe migraines since the age of twelve. He noted she had been using aspirin and Panadeine Forte for acute attacks.
171 Dr Yerra reported on 5 June, 7 September and on 5 October 2007, following the MRI scan of the lumbar spine.
172 Dr Yerra then thought the plaintiff’s back pain was gradually improving with physiotherapy. She was having Pilates which she felt was helpful. She had some localised back pain and did not experience any radiation any more. He thought she most likely had a musculoskeletal back problem which should improve with physiotherapy in time.
173 Dr Yerra noted at that stage, the plaintiff’s migraines had been completely in remission. She continued taking Propranolol at a dose of 25 milligrams per day and Dr Yerra suggested she should continue this for the next few months at least. He had then discharged her from his care.
174 Mr Steven Hall, exercise physiologist, wrote to Dr Walsh in July 2007, thanking him for referring the plaintiff, who then complained of a three out of ten level of pain. He commenced the plaintiff on a program of therapeutic exercises and noted she was to perform some stretching exercises to decrease the spasm and restore normal resting tone to her muscles.
175 Mr Hall again wrote to Dr Walsh in September 2007 following her fifth visit. He noted that over the course of treatment she diligently applied herself to exercises and had made good progress. The plaintiff advised that she was adjusting well at work and improving her tolerance of work demands, and felt her pain had reduced significantly in her lumbar spine and she was moving quite freely. At that stage, the plaintiff was advised to continue her exercise regime with emphasis on core stabilisation and restoring muscle balance and a full range of motion to her right hip.
176 Dr Grave wrote to Dr Walsh on 6 November 2007. He reported the plaintiff presented with a four-month history of thoracic and lumbar back pain which occurred after the incident. He noted, at the time of the incident, the plaintiff felt instantaneous pain in her back and buttocks, referring to her legs. The pain had been slowly decreasing, but she still had considerable discomfort in the gluteal region and posterior hamstring region, which she described as a dull ache. She was then taking Voltaren and Nurofen.
177 Dr Grave reported that there were gluteal trigger points present on the right more than the left. There was paraspinal muscle spasm on the right in the paravertebral musculature. There was tightness in piriformis on the right, gluteus medius and psoas.
178 Dr Grave advised the plaintiff’s core stability had to be addressed. He suspected that the key lesion was relating to the iliopsoas spasm. He injected the trigger points on that occasion. He advised that he had explained to the plaintiff it may take eight to twelve weeks to obtain a reasonable stretch on that particular muscle and he would like to review her in two weeks. He noted she was then coping with her workload and he anticipated that over the next four to eight weeks she would be able to increase her duties and lift the two-day concurrent work limit.
179 On 22 November 2007, Dr Grave wrote to Dr Walsh following review of the plaintiff. The plaintiff then reported her pain had significantly improved and that the pelvic discomfort had ceased. On examination, there were only a few minor trigger points, and palpation of the lumbar spine demonstrated tenderness at L3-4. Further injections were carried out with the iliopsoas released using a Blomberg technique. Dr Grave asked the plaintiff to return in three weeks. He thought she was making reasonable progress and he believed she was diligent in doing her exercises.
180 Dr Grave wrote to Dr Walsh on 28 November 2007, noting he had done a myofascial release on the previous visit. He noted that the plaintiff had begun to develop some pain in the thoracic region and wondered whether she had done damage to her back.
181 On examination on 28 November 2007, there was some lumbar spasm on the right and some tightness in the iliopsoas on the right, and the piriformis. Dr Grave reported there was dysfunction at the thoracolumbar junction on the right between T-10 and L-3. Myofascial release was performed.
182 Dr Grave advised the plaintiff that there was no major relapse and it was only a minor problem related to tightness in the musculature and she must keep on stretching for the next eight to twelve weeks. He gave her two days off work.
183 Notes from the Clinic were tendered, detailing attendances from 5 December 2002 until January 2012. A complaint of low back and upper back pain was last noted on 3 May 2011. There were earlier references to low back pain on 17 January 2011, 21 October 2009 and during 2008 and 2007.
Medico-Legal Examinations
184 Mr Stanley Schofield, orthopaedic surgeon, examined the plaintiff in February 2008. She then complained of decreasing low back pain towards the right side of the midline with no sciatica.
185 On examination, there was low lumbar tenderness. Spinal flexion was to seventy degrees, and extension and other movements were normal. Bilateral straight leg raising was to ninety degrees and there were no neurological abnormalities.
186 Mr Schofield thought the history of the plaintiff’s injury was consistent with the significant rotational probable extension strain placed on her spine, causing acute pain due to swelling of the soft tissues in the lumbar region. He noted she had not been able to return to her normal work and sporting and social activities.
187 Mr Schofield thought the plaintiff was not fit for pre-injury duties, noting restrictions had been placed on her according to return to work plans. He noted the MRI scan had failed to demonstrate a disc prolapse and therefore, the diagnosis was a lumbar disc strain.
188 Mr Schofield re-examined the plaintiff on 21 August 2009. At that stage, she had gone on to working two days a week at the Hospital and also in the Clinic. She then continued to complain of pain on the right side of the midline in the low lumbar region, radiating to the right buttock, with no radiation down the leg. Pain was always present and exacerbated with occasional acute spasms of pain in the back.
189 On examination, there was a normal lumbar lordosis but with some tenderness in the right buttock. Flexion was to eighty degrees, which caused back pain. Extension and other movements were normal. Straight leg raising, however, was restricted to seventy degrees bilaterally, which reproduced low back pain. Neurological examination was normal.
190 Mr Schofield noted that although the plaintiff stated there had been less severe pain following reduction of her physical activities, her clinical signs were slightly worse than when initially examined, with more restricted straight leg raising. He thought further investigations were required to determine the reason for the signs and her continuing back pain.
191 Mr Schofield commented there was no evidence of any non physical or non orthopaedic factors in her claim. He thought she had a capacity for restricted duties only and no capacity for pre-injury employment. He suggested an MRI scan was required.
192 Mr Schofield provided a supplementary report in November 2009, following the MRI scan. He noted the report stated there was broad based mild disc bulging at the lumbosacral level without nerve compromise and there were similar changes of bulging at L3-4 and L4-5. He compared that with 2007 MRI scan of 2007, the report of which indicated no evidence of bulging at any level.
193 In Mr Schofield’s view, the current findings on MRI scan confirmed there was evidence of pathology in the plaintiff’s lumbar spine, explaining her persistent symptoms and inability to resume work as a Division 1 Nurse full time. He thought she was fit for alternative duties, which she was undertaking when examined by him, and was able to cope with them. He thought she was not fit to resume her previous duties.
194 Mr Schofield considered the current medical treatment was reasonable and it was up to the treating practitioner to decide the frequency of treatment. He thought the plaintiff’s condition was stabilised. He considered her prognosis was guarded and noted it would be advisable for her to seek permanent alternative employment within the medical profession.
195 Future management, in his view, would depend on the plaintiff’s progress with her current work. If her symptoms worsened, Mr Schofield thought she might need a repeat MRI scan, as well as x‑rays, including erect functional views, and if the pain worsened, the plaintiff may need to be referred to a pain specialist.
Claim Documents
196 The plaintiff completed a Claim Form in relation to the incident injury on 21 June 2007. The injured areas noted were the left shoulder and right lower back. The plaintiff set out she was working sixty four hours in the week before the incident.
Certificates
197 Following examination on 22 June 2007, Dr Walsh certified the plaintiff was expected to be fit for normal duties on 28 June 2007. She noted the plaintiff suffered the low back injury when she tried to catch a falling patient.
198 Following examination on 4 July 2012, Dr Grave certified the plaintiff fit for modified duties from 4 July to 4 October 2012. He noted she was suffering from a longstanding condition in relation to which three-monthly certificates were issued for thoraco back pain.
The Plaintiff’s Taxation Returns
Financial Year Gross 2004 $2,950 2005 $3,417 2006 $12,567 2007 $22,625 2008
(South West Health Care)
$29,054
2009
(South West Health Care)
(Warrnambool Medical Clinic)
TOTAL
$21,058
$18,103
$39,188
2010
(South West Health Care)
(Warrnambool Medical Clinic)
TOTAL
$6,586
$49,879
$56,465
2011
2012
$65, 577
$70,985
Overview
199 I accept the plaintiff suffered a compensable injury to her lower back in the incident on the said date.
200 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments, medical expenses and the plaintiff’s claim pursuant to s98C of the Act.
201 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
202 In the absence of any significant radiological findings, the plaintiff’s condition has been diagnosed as mechanical lumbar back pain, back strain and an aggravation of lumbar spondylosis. There is no suggestion that prior to the incident, the plaintiff experienced any back pain.
203 There have been findings of muscle spasm on a number of occasions by Dr Grave, the plaintiff’s general practitioner, and also and her treating osteopath.
Credit
204 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
205 I accept that the plaintiff gave her evidence truthfully and without exaggeration. There was no suggestion by any medical practitioner of inconsistencies on examination or of embellishment by the plaintiff of her condition.
206 The short video surveillance showed the plaintiff leading a relatively quiet life, not engaging in any strenuous activity. She was prepared to concede she may have sat in the hotel having a meal for an hour or so without having to get up and move around. Quickly lifting her small dog and holding it for a couple of minutes did not show a level of movement or activity inconsistent with the plaintiff’s evidence in general.
207 The plaintiff’s partner, James, was supportive of the plaintiff’s complaints and situation and his evidence was not challenged.
208 I accept that since the incident, when the plaintiff was aged only twenty three, she has suffered predominantly lower back pain which is subject to flare ups, and occasionally radiates down into her legs.
209 In Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Ashley JA and Beach AJA, at paragraph 43, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
210 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
211 The plaintiff has undergone a range of hands-on treatments. Whilst not having been referred to an orthopaedic surgeon, the plaintiff continues under the care of musculoskeletal physician, Dr Grave. Despite his optimism as to the plaintiff’s future expressed in his 2010 report, the plaintiff continues to undergo regular physiotherapy treatment in addition to her own personal exercise regime of body balance, exercises and Pilates, which she undertakes diligently. In 2007 and 2008, she also received massage treatment and attended an exercise physiologist
212 Further, the plaintiff requires ongoing over-the-counter painkilling medication and the prescription drug, Prothep, to aid muscle relaxation and help her sleep.
213 As a result of her spinal pain, the twenty eight year old plaintiff is unable to resume competitive sport she enjoyed before the incident and whilst at university. Further, her injuries have prevented her continuing combat aerobics, which she had enjoyed regularly since leaving school.
214 Due to her back pain, the plaintiff has difficulty with prolonged sitting and standing, bending and lifting heavier items. She is restricted in her ability to maintain her home and requires the assistance of a cleaner for heavier household tasks. Problems with prolonged sitting and standing also affect the plaintiff’s enjoyment of social activities, such as going out for a meal, attending the pictures and driving longer distances.
215 The plaintiff has been unable to enjoy a range of recreational activities available to her on recent trips overseas as a result of her back pain.
216 Further, the plaintiff is unable to participate actively in the household renovations being carried out by her partner.
217 Due to her spinal pain, the plaintiff continues to suffer significant difficulties with sleep.
218 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 45:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
219 The plaintiff has problems with intimacy with her partner due to back pain.
220 The plaintiff has difficulty playing with her partner’s very young nephews and this concerns her in terms of how she would handle a pregnancy herself.
221 Significantly, the plaintiff is no longer able to pursue her career plan of working as a Division 1 Nurse, having completed her course just prior to suffering injury.
222 Since the incident, the plaintiff has been unable to return to unrestricted heavy nursing, save for a brief attempt in 2008 in line with the Hospital lifting policy, after which she suffered a flare up of back pain.
223 The inability to work unrestricted as a nurse was effectively conceded by counsel for the defendant, in line with the consensus of medical opinion.
224 The plaintiff’s problems with hands-on nursing resulted in her making a career change, initially working part time, and now working full time in the Clinic.
225 However, even that lighter work causes the plaintiff to suffer pain at the end of the day and she experiences an increase in back pain when required to sit working at the computer, drawing up treatment plans and doing other paperwork.
226 Although the plaintiff had not made any firm plans as to alternative nursing before completing her graduate year, I accept that she had a desire to nurse and travel overseas after finishing her graduate year. Since the incident, the range of work available to her in that context is significantly reduced due to her inability to engage in hands-on nursing.
227 Further, career options at home such as midwifery, theatre or acute nursing and the position of a director of nursing are no longer open to her because of her restrictions. Although there has not been a loss of income with the plaintiff undertaking Clinic duties, due to her back condition, she is effectively shut out of more intense, exciting nursing options which were open to her prior to suffering injury.
228 Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s impairment are serious.
229 As the plaintiff’s condition has persisted for over five years, I am satisfied her impairment is permanent.
230 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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