Cox v East Grampians Health Service
[2014] VCC 475
•16 April 2014
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-04402
| RHONDA COX | Plaintiff |
| v | |
| EAST GRAMPIANS HEALTH SERVICE | Defendant |
---
JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 24, 25 and 26 March 2014 | |
DATE OF JUDGMENT: | 16 April 2014 | |
CASE MAY BE CITED AS: | Cox v East Grampians Health Service | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 475 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back – whether pain and suffering consequences are “serious” – whether plaintiff has suffered a loss of earning capacity – whether psychological/psychiatric injury is “severe”
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(c)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: The Originating Motion is dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N R Bird with Mr I R Fehring | Stringer Clark |
| For the Defendant | Mr P D Elliott QC with Mr J L Batten | Lander & Rogers |
HIS HONOUR:
1 This proceeding is an application brought by Originating Motion dated 30 September 2010 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 or in the course of her employment with the defendant and more particularly from an incident which occurred on 3 March 2004.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages.
3 The injury suffered by the plaintiff for which she seeks leave to bring proceedings for damages is an injury to her lower back. The plaintiff also claims for serious injury impairment as a result of her severe psychological or psychiatric condition of adjustment disorder or chronic pain syndrome.
4 The following evidence was adduced during the hearing:
·The plaintiff gave evidence and was cross-examined.
·The plaintiff’s partner Stephen James Fitzpatrick gave evidence and was cross-examined.
·The plaintiff tendered the following documents:
§Exhibit A – Plaintiff’s Court Book (“PCB”) pages 1–83.
·The defendant tendered the following documents:
§Exhibit 1 – Defendant’s Court Book (“DCB”) pages 1–56.
§Exhibit 2 – referral letter of Dr Fleming to Mr John Bourke dated 30 May 2005.
§Exhibit 3 – medical reports of Mr Brendan O’Brien dated 17 August 2006 and 15 May 2008.
§Exhibit 4 – medical report of Dr Katrina Reardon dated 27 May 2008.
§Exhibit 5 – report from Dr Praveen Kumar dated 6 January 2011.
§Exhibit 6 – South West Healthcare notes from May 2008 to February 2010.
§Exhibit 7 – certificate of capacity dated 29 May 2009.
§Exhibit 8 – Government Gazette entry dated 5 November 2009 in relation to Mr Fitzpatrick’s property.
§Exhibit 9 – letter from Mr Fitzpatrick to WorkCover insurer dated 10 July 2009.
§Exhibit 10 – DVD surveillance film of the plaintiff for 23 October 2013.
§Exhibit 11 – ASIC searches in relation to Moyston General Store and the Dunkeld Authorised Newsagency.
§Exhibit 12 – article from the Dunkeld Newsletter dated 8 December 2011.
5 This application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that she has suffered a permanent serious impairment or loss of body function. The loss of body function in this case is to the plaintiff’s back. The plaintiff has also brought an application under the definition of serious injury contained in s134AB(37)(c) of the Act which requires the plaintiff to prove that she has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. The severe psychological or psychiatric disorder relied upon by the plaintiff in this case is an adjustment disorder or a chronic pain syndrome.
Issues in this case
6 Mr Fehring on behalf of the plaintiff stated that the issues in the case were both for a physical injury for the plaintiff and a psychiatric injury for the plaintiff. He stated that whilst the physical injury to the plaintiff was not abandoned, the emphasis in the case would be on the psychiatric condition of the plaintiff.[1] I am required therefore to fully determine the plaintiff’s application for serious injury under both the physical and the psychiatric/psychological injury.
[1]Transcript (“T”) 5
7 Mr Elliott QC on behalf of the defendant identified the issues as follows:
(a)The credit of the plaintiff.
(b)The plaintiff has no injury or cause for the allegations of pain made by her.
(c)The plaintiff has a capacity to work, and has not exercised that capacity.
(d)In respect to both the physical and the psychological/psychiatric claim for serious injury, this is a range case.
8 The plaintiff was cross-examined extensively during the course of this application. The plaintiff’s partner, Stephen Fitzpatrick, was also cross-examined on the issue of the plaintiff’s credit and other factual matters in dispute.
The Statutory scheme
9 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that she has suffered a permanent serious impairment or loss of body function.
10 The application is also brought under the definition of “serious injury” contained in ss(37)(c) of s134AB of the Act which requires the plaintiff to prove that she has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
11 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.[2]
[2]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[3]
[3]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) Subsection (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 ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
12 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
13 The plaintiff was born in 1956 and is now fifty-seven years old. The plaintiff lives in a de facto relationship with Stephen Fitzgerald and has done so for some fourteen years. The plaintiff has one son and one daughter from a previous marriage. Both children are adult and live independently of the plaintiff.
14 At the time of the industrial accident the subject of this application the plaintiff was living at the Moyston General Store. She was conducting the business at the Moyston General Store with the assistance of her de facto partner and other employees. At that time she was also working part-time as a Division 2 Nurse with the defendant.
15 The plaintiff had previously injured her thoracic spine and neck when she was approximately twenty-four years old. At the time of the injury she was working at the Queen Elizabeth Centre in Ballarat and was required to take a full twelve months off work prior to resuming her nursing duties in aged care. Since the time of her injury as a twenty-four-year-old the plaintiff had required treatment for the pain to her thoracic spine and neck.[4]
[4]PCB 3
16 The plaintiff registered the business name of the Moyston General Store on 23 December 2004 and conducted that business until 24 January 2012. That is Exhibit 11. The plaintiff also was registered as the proprietor and partner of the Dunkeld Authorised Newsagency between 19 May 2010 and 23 January 2012.[5] For the period of May 2010 until January 2012 the plaintiff was the registered proprietor of both the Dunkeld Authorised Newsagency and the Moyston General Store. The plaintiff’s evidence was that she had become bankrupt in the early part of 2012. She is currently an undischarged bankrupt.
[5]Exhibit 11
17 The plaintiff stated that she had a minor traffic accident in June 2004 whilst driving her mother home. The plaintiff stated that she had a minor neck injury as a result of this accident and the symptoms have subsequently resolved.[6] The plaintiff alleges that she was injured at her place of employment on 3 March 2004, some three months before the transport accident. The plaintiff has, after both of these accidents and the injuries received in them, conducted the Moyston General Store and been the registered proprietor of the Dunkeld Authorised Newsagency.
[6]PCB 3
Injury with the Defendant
18 The plaintiff commenced employment with the defendant as a Division 2 Nurse in 2002. The plaintiff’s duties were to assist with elderly patients in an aged-care facility.
19 In the course of her employment the plaintiff states that she was injured on 3 March 2004. The plaintiff describes the injury in the following terms:
“I suffered injury to my back in the course of my employment on or about 3 March 2004. The injury occurred when I was attempting to assist an extremely difficult resident who subsequently caused me to be forced into a wall when I then slipped down. The floor was wet. It was in the bathroom area and I had to hold onto the shower bed to stop me falling into the water. I suffered immediate pain in my back. I completed an Incident Report and attended upon the Ararat Medical Clinic on the day of the incident and I was prescribed Valium. I was put off work for a short period of time. At that time I did not lodge a WorkCover claim as I did not want to jeopardise my employment and I hoped that my pain would resolve.”[7]
[7]PCB 3, paragraph 4
20 The plaintiff continued working with the defendant in the capacity of a Division 2 nurse. She describes the reason for her ceasing to work in March 2005 as being the result of the severity of the pain to her back and legs.[8]
[8]PCB 4, paragraph 6
The Credit of the Plaintiff
21 At the commencement of this application, Mr Elliott QC on behalf of the defendant stated that the credit of the plaintiff was a major issue in this case.
22 The first area of credibility of the plaintiff being under attack revolved around the issue of the conduct of her businesses the Moyston General Store and later the Dunkeld Authorised Newsagency. The plaintiff’s evidence was that she originally started operating the business at the Moyston General Store in 2003.[9] At the same time as operating the Moyston General Store the plaintiff was also working with the defendant for approximately 15 hours per week. The plaintiff’s alleged injury in this case occurred in 2004. The plaintiff went back to work after the injury, but ceased working with the defendant in 2005.[10] The plaintiff stated that she did not give up the nursing job to work the general business at Moyston. She stated her reason for giving up the nursing was she was no longer capable of nursing. The plaintiff stated that she was not working in the business that much.[11]
[9]Transcript (“T”) 12
[10]T13
[11]T13
23 On 6 December 2006 the plaintiff attended upon Dr Jeanne McGivern for a medical examination on behalf of the defendant’s insurer. In the course of the history given to Dr McGivern the plaintiff stated that she ran her own mixed business and worked up to 35 hours a week behind the counter.[12] The plaintiff in her evidence stated that she could not recall telling Dr McGivern the history of working 35 hours at the counter. The evidence continued:
“Q: And it says you worked up to 35 hours a week there?---
A: No sir.”[13]
[12]DCB 13
[13]T65, L15
24 I accept that the plaintiff told Dr McGivern that she worked 35 hours a week when she visited her in December 2006. I reject the evidence of the plaintiff when she denies working the 35 hours a week at the Moyston General Store in or about the time she attended on Dr McGivern and states that she did not recall telling Dr McGivern that she did so.
25 In August 2006 Dr Michael Forster referred the plaintiff to Mr Brendan O’Brien, neurosurgeon, for treatment for complaints by the plaintiff of pain across both shoulders associated with cervicogenic headaches. The complaint by the plaintiff was that she also suffered painful numbness in all of her fingers.
26 When the plaintiff attended upon Mr Brendan O’Brien she told him that she had stopped nursing because of this condition and that she was having trouble working a full shift. The condition of the pain in her fingers and shoulders with associated cervicogenic headaches has nothing to do with the injury complained of in this case. The plaintiff told Mr O’Brien that she stopped work as a nurse because of the painful headaches and the numbness in the fingers.[14]
[14]Exhibit 3
27 In her evidence the plaintiff stated that at the time she was getting numbness in her fingers she was not nursing. She denied that she stopped nursing because of the pins and needles in her hands. She could not remember giving a history to Mr O’Brien that she stopped nursing because of those symptoms.[15] The plaintiff underwent carpal tunnel surgery to both wrists in August 2007.[16] I accept that the plaintiff was not nursing in 2006. I reject her evidence that she either did not give the history of the wrists causing her to cease nursing to Mr O’Brien or that she could not remember telling him that history. By way of completeness, the plaintiff returned to Mr O’Brien in May 2008 complaining of the persistent frontal headaches. Mr O’Brien treated her at that time by localised injection into the region of both occipital nerves. I accept that the plaintiff has suffered symptoms in relation to severe headaches but these headaches have nothing to do with the claimed injury in this application.
[15]T66
[16]T67
28 The plaintiff attended on Dr Katrina Reardon on 27 May 2008. Dr Reardon reported that the plaintiff gave a history of having chronic daily headaches shortly after a work accident.[17] At the time of her visit to Dr Reardon the plaintiff had been receiving assistance from Hamilton Psychiatric Services. According to Dr Reardon’s report the plaintiff had been suffering from chronic pain with fibromyalgia.
[17]Exhibit 4
29 In her evidence the plaintiff agreed that she had given that history to Dr Reardon. She stated that she had been told that she was taking too much medication, including Panadeine Forte, and that this medication or its overuse would cause the headaches. She was also warned against an excessive intake of coffee. In her case, the history was that she took twelve cups of coffee per day. The plaintiff’s evidence is that she attributes these headaches to the work accident. I do not accept that the medical evidence supports that proposition. I find that the plaintiff is seeking to exaggerate and attribute any symptoms she has to the work accident.
30 The plaintiff is seeking serious injury certification in this case on the basis of a psychiatric and psychological condition. She attributes the psychological/psychiatric state that she is in to the work accident in 2004. The plaintiff originally attended upon South West Healthcare for psychiatric assessment on 20 December 2007. On that occasion she complained that her psychiatric condition commenced when she lost her job at the aged-care facility. The notes of the plaintiff’s attendance upon the psychiatric service on 1 July 2008 stated that she was looking to purchase a newsagency. In his evidence, Mr Fitzpatrick agreed that in January or February 2008 he and the plaintiff were putting in an offer to run the newsagency in Dunkeld.[18] In the hospital notes the plaintiff gave a history of putting in an offer to run the newsagency in Dunkeld and that they only needed financial approval. It is noted that the plaintiff thought the business transaction was well thought out.[19]
[18]T137
[19]Exhibit 6
31 The history to the psychiatric service continued in 10 December 2010. The plaintiff then gave a history that she had “various stresses in her life, including her father’s death two years ago, her mother’s death last year, and financial stress, relationship issues, and so on”.[20] On the later visits on 14 December 2010 and 20 December 2010 the plaintiff gave a history to the psychiatric service of functioning well, and was busy at the shop.[21]
[20]Exhibit 4
[21]Exhibit 6
32 The plaintiff’s history to the psychiatric service in 2010 is completely at odds with the presentation by her in court about how she was managing her life at that time. It is also at odds with the manner in which she presents herself in court in this application as being unable to work due to her psychiatric difficulties.
33 The plaintiff operated the Moyston General Store from approximately 2003 to 2012. The plaintiff last submitted a tax return for the year ending June 2007. Mr Elliott QC on behalf of the defendant sought to cross-examine the plaintiff concerning her tax affairs and her failure to put in tax returns from 2007 until the current time. The plaintiff sought, and I granted, a certificate under s128 of the Evidence Act.[22] The plaintiff was then asked the following question:
[22]T19
Q:“Mrs Cox, I was asking you why you haven’t put in tax returns since 2007. Why?---
A: Mental illness.”[23]
[23]T19, L12–13
34 I do not accept this evidence as being genuine. The plaintiff since June 2007 has commenced as a proprietor of the Dunkeld Authorised Newsagency. She has continued to run her Moyston General Store, either directly with her own involvement and input, or continuing with the lease arrangements for the store between 2006 and 2009. At the same time she has been the carer and received a carer’s pension for her mother until her death in 2010. In more recent times she has taken up the role as carer and receives a pension for the care of her partner’s mother, Mrs Fitzpatrick. It is inconceivable that the plaintiff can engage in all of these activities, almost all at the same time, and not be capable from a mental health point of view of completing her tax affairs. This is a clear example of the plaintiff seeking to exaggerate and maximise her chances in this application.
35 The plaintiff sought to underplay her involvement in the two businesses of the Moyston General Store and the Dunkeld Authorised Newsagency. In respect of the Dunkeld Newsagency the plaintiff stated in her evidence that:
“I did not work at Dunkeld sir.”
36 She went on to state that she advised but did not work there.[24] It is clear on the evidence that the plaintiff was the registered proprietor of the Dunkeld Authorised Newsagency from 19 May 2010 until 23 January 2012. In that period and particularly on 10 December 2010 the plaintiff reported to Dr Victoria Blackwell, her general practitioner, that she was not coping too well with life, and one of the reasons was:
“Financial stretching – trying to cope with the pressure of 2 businesses.”[25]
[24]T37
[25]DCB 58
37 The plaintiff was seen by Mr Roderick Cunningham, an orthopaedic surgeon, who reported on 7 June 2010 that she gave him a history as follows:
“I note that she smokes 25 cigarettes a day and runs two general stores, one in Dunkeld and one in Moyston, which must be a considerable workload for her.”[26]
[26]DCB 64
38 The contemporaneous reporting to her own general practitioner and orthopaedic surgeon that she is conducting two businesses, one in Moyston and one in Dunkeld, at the same time in 2010, is contrary to the evidence she gave in court in respect of these businesses. I do not accept the plaintiff’s evidence in relation to the conduct of the two businesses.
39 In the course of her evidence the plaintiff stated that Mr Fitzpatrick did the heavier work at the Moyston store. She stated that he was not a partner in the financial sense for the business. Mr Fitzpatrick basically was fed and stayed at the shop. The plaintiff stated that she did not give him any money for the work he performed at the Moyston store.[27]
[27]T47–48
40 In her evidence the plaintiff was asked how Mr Fitzpatrick financed his life if he was not paid for working in the store. The evidence was as follows:
Q:“Now, the position with Mr Fitzpatrick, what you say he didn’t earn any money out of the business, correct?---
A:That’s right, sir.
Q:Well did he receive - I’ll rephrase it. Did he have a source of income, moneys that he was paid?---
A:That was his business, sir.
Q:I’ll ask you the question again. You’d been living with him since 2001/2002 - something like that - for many years, while you were running the Moyston store what income did he have and from where?---
A:That is his business, sir.
Q:Really ‑ ‑ ‑
HIS HONOUR:
Q:So you say you’ve got no idea where Mr Fitzpatrick would have got any money other than ‑ ‑ ‑?---
A:I had nothing to do, Your Honour, with his ‑ ‑ ‑
Q:With his what?---
A:That side of his life. We were separate as in we - you know, like I had this - we were in partnership in the store, but he did - did his own payments on the - his house and that sort of thing, I never asked, sir.
Q:So as I understand your evidence yesterday you said there was no money coming from this store, or any of his work as a partner in the store none of the money was coming out of the Moyston shop ‑ ‑ ‑?----
A:No, sir.
Q:- - - form him ‑ ‑ ‑?---
A:No, sir ‑ ‑ ‑
Q:And you’ve got no idea how he paid off his house, or anything like that?---
A:I assume he had an income, Your Honour, but I never asked.
MR ELLIOTT:
Q:This man you’ve lived with for all these years, you run a business together and you never asked him what income he gets, and what he lives on when he doesn’t get anything out of the store you never asked him?---
A:(No audible response.)
Q:Is that right?---
A:That was his business, sir.
Q:Perhaps I’ll ask you again. Did you know - whether you discussed it or not - did you know what his source of income was?---
A:No, sir.
Q:Do you know today what his source of income is?---
A:He has an income coming in, because he pay[s] for the house.
Q:He has an income coming in and he pays for the house?---
A:Yes, sir.”[28]
[28]T77, L13–T78, L20
41 The plaintiff agreed that she had a joint bank account with her partner, but she stated that she did not use it. The plaintiff denied that she knew that her partner Mr Fitzpatrick had been in receipt of workers compensation payments for 1,038 weeks.[29]
[29]T80
42 The denial by the plaintiff that she knew that Mr Fitzpatrick was receiving income from workers compensation is simply unbelievable. The plaintiff later agreed that she witnessed the signature of the claimant Mr Fitzpatrick on his certificates of capacity so that he could obtain workers compensation payments.[30] The plaintiff agreed that a sample certificate of capacity contained her signature dated 29 May 2009.[31] The plaintiff denied that she ever read the certificate of capacity documents. She then stated in evidence:
Q:“How many of these would you have signed over the years, many of them?---
A:I assume so, sir, he goes and gets one and he just puts it down like that and he said, ‘Can you sign that please? And I say, ‘Yes’.”[32]
[30]T82
[31]Exhibit 7
[32]T89, L10–13
43 The evidence is that the payments of Mr Fitzpatrick’s workers compensation were to be made into the joint account of the plaintiff and Mr Fitzpatrick from 14 July 2009 onwards. Those payments are currently paid to that same joint account.[33] I do not accept the plaintiff’s evidence that she did not know about Mr Fitzpatrick’s workers compensation payments and that she did not know about which bank account the payments were made to. The course of the evidence on this issue was a typical example of the plaintiff seeking to mislead the court about the state of her knowledge until she was presented with the documentary evidence that disproved her evidence.
[33]Exhibit 9
44 In conclusion, on the issue of the plaintiff’s credit I find that at best she is unreliable and seeks to exaggerate her medical condition in an attempt to maximise her chances of successfully obtaining certification for serious injury in this application. I do not accept the plaintiff is a truthful witness.
Video surveillance film of the Plaintiff
45 In the course of this application the plaintiff was shown DVD surveillance of her for the dates of 10 and 23 October 2013. The plaintiff was observed driving a silver Mercedes-Benz coupe vehicle, registered YME 773. In her evidence the plaintiff stated that that car was not her car, but was registered to Stephen Fitzpatrick.[34] The plaintiff was filmed shopping in Grey Street, Hamilton, attending a pharmacy and then later on at the Safeway supermarket. The film displayed the plaintiff acting and performing the normal duties of shopping without any apparent restriction. The plaintiff then attended at a Home Timber and Hardware store in French Street, Hamilton, where she was observed to be purchasing a metal bracket. In her evidence the plaintiff stated that the metal bracket was for home renovations that Stephen was performing in Dunkeld.[35]
[34]T95
[35]T97
46 The images of the plaintiff displayed in the DVD surveillance film show the plaintiff acting in a normal manner and being physically able to do the usual activities surrounding a shopping trip. The surveillance film did not advance either party’s case in this application.
Injury with the Defendant
47 The plaintiff commenced employment with the defendant in 2002 as a Division 2 Nurse. Her activities at work were to assist in the care of aged patients.
48 The plaintiff described her injury in the following terms:
“I suffered injury to my back in the course of my employment on or about 3 March 2004. The injury occurred when I was attempting to assist an extremely difficult resident who subsequently caused me to be forced into a wall when I then slipped down. The floor was wet. It was in the bathroom area and I had to hold onto the shower bed to stop me falling into the water. I suffered immediate pain in my back. I completed an Incident Report and attended upon the Ararat Medical Clinic on the day of the incident and I was prescribed Valium. I was put off work for a short period of time. At that time I did not lodge a WorkCover claim as I did not want to jeopardise my employment and I hoped that my pain would resolve.”[36]
I attempted to keep working but over time my back condition got worse and I started to experience leg pain and I also started to get depressed because of the restrictions and the ongoing pain I was experiencing. I was put off work on a couple of further occasions, one of those being around October 2004 when I was referred for an x-ray. It was shortly after that that the WorkCover Claim form was lodged. Later on I was referred for a CT scan. I also had chiropractic treatment, physiotherapy treatment and massage treatment.”[37]
[36]PCB 3, paragraph 4
[37]PCB 3–4
49 The plaintiff ceased her employment with the defendant in March 2005. The plaintiff stated the reason for her ceasing employment was that she was having symptoms in her legs as well as the back pain, and that she was having suicidal ideation.
50 The defendant has accepted that the plaintiff was injured in respect to her lower back in the incident of 3 March 2004, but the dispute in this case is “What are the consequences arising from that injury at the present time and into the foreseeable future?”
The Medical opinions/physical injury
Dr Doug Fleming, general practitioner
51 The first doctor is Dr Doug Fleming, general practitioner. Dr Fleming prepared a report dated 17 October 2005. In his report Dr Fleming notes that the plaintiff first attended upon him on 8 October 2004 complaining of acute back pain. Dr Fleming originally organised an x‑ray, which showed scoliosis only. He prescribed analgesics and non-steroidal anti-inflammatory drugs, together with physiotherapy. He also prescribed the plaintiff Endep.
52 Dr Fleming arranged for the plaintiff to be assessed by John Bourke, orthopaedic surgeon. Dr Fleming managed the plaintiff’s return to work program, but gave this opinion:
“I felt that a return to full duties was going to be slow and drawn out. To avoid further anxiety we both decided she should resign and concentrate on her own business. Since doing this there has been a noticeable improvement overall.”[38]
[38]PCB 18
Mr John Bourke, orthopaedic surgeon
53 Mr Bourke examined the plaintiff on 10 June 2005 on the request of the general practitioner Dr Fleming. Mr Bourke prepared a report dated 11 October 2005. Mr Bourke examined the x‑ray and CT scan of 20 January 2005. Mr Bourke’s opinion was:
“It was felt that she had lumbar spine dysfunction secondary to a soft tissue injury to her lumbar spine at the L4‑5 level. It was felt that her treatment should be conservative with the emphasis on self management.”[39]
[39]PCB 16
54 The opinion of Mr Bourke is now eight years old and is of little assistance in the assessment of the plaintiff’s current condition. I note, however, that he described the injury as a soft tissue injury, which in the ordinary course of events would be expected to repair over that period.
Dr M F Forster, general practitioner
55 Dr Forster prepared a report dated 31 January 2008. Dr Forster took over the practice from Dr Fleming. Dr Forster’s treatment of the plaintiff was to prescribe Mirtazapine and then subsequently Lexapro for the plaintiff’s depressive symptoms. The plaintiff had previously been prescribed Valium to assist in the treatment of muscle spasms.
56 Dr Forster noted the investigations on x‑ray and CT scan. He noted that there was a minor L4‑5 central disc bulge with no lateralisation. In Dr Forster’s opinion he did not believe that these findings were relevant to the plaintiff’s problems.[40]
[40]PCB 19
57 In the same report Dr Forster stated that the plaintiff was unfit for her previous occupation. Dr Forster noted that he did not make a diagnosis of fibromyalgia and was unaware that such a diagnosis had been made. In Dr Forster’s opinion the plaintiff had suffered depression as a result of her back pain which had become chronic.[41]
[41]PCB 20
Dr V A Blackwell
58 Dr Blackwell prepared a medical report dated 10 August 2009 for this application. Dr Blackwell had been seeing the plaintiff from 5 June 2007 to the date of the report. In her report, Dr Blackwell noted the diagnosis for the plaintiff was depression, chronic pain from lumbar and cervical spine osteoarthritis and fibromyalgia, chronic headache – muscular contraction headache and migraine.
59 In respect of depression, Dr Blackwell had referred the plaintiff to the local psychiatric services for assessment in December 2007. As a result of that referral the plaintiff was prescribed the anti-depressant medication Venlafaxine 150 milligrams daily.
60 Dr Blackwell noted that she had never been directly involved in the treatment of the plaintiff for specific back and leg pains. She noted that the plaintiff had been taking a combination of Panadeine Forte and Panadeine which controlled her pain levels.[42] Dr Blackwell noted in her report that a chronic pain condition such as that complained of by the plaintiff generally has a poor prognosis. Dr Blackwell declined the opportunity to comment on the plaintiff’s capacity for work.
[42]PCB 25
61 The only other report from Dr Blackwell was dated 10 September 2010, which was a referral to Dr Praveen Kumar. This referral was for the purposes of psychiatric assessment and treatment. In that referral, the referring practitioner Dr Blackwell set out the cause of her psychiatric condition as being “financial stretching – trying to cope with the pressure of two businesses”.[43] The plaintiff has returned to treatment from the general practitioner Dr Blackwell but there is no up-to-date report from that doctor.
[43]DCB 58
Dr Dale Ford
62 Dr Dale Ford prepared a report dated 8 July 2013. Dr Ford noted that he had first seen the plaintiff on 30 November 2011. At that time she was complaining of severe pain from her neck right down her back, with associated headaches. In his report, Dr Ford noted that the plaintiff’s lumbar spine movements were very stiff but there were no abnormal neurological signs. At that time he placed the plaintiff on Panadol Osteo and referred her to Clifton Watt, physiotherapist, for treatment.
63 Dr Ford noted that a lumbar CT scan had been performed on the plaintiff by Dr Victoria Blackwell and that was reported as normal. Subsequent to an MRI on 30 May 2013 the plaintiff was placed on Mobic, 15 milligrams as necessary, as well as Panadol Osteo. Dr Ford gave the opinion that he thought her physical injuries alone were enough to have precluded her from working.[44] I note in Dr Ford’s report he has no history of the plaintiff conducting the Moyston General Store or being the proprietor of the Dunkeld Authorised Newsagency in the course of the time that he was treating the plaintiff. I note Dr Ford does not deal with the psychiatric injuries alleged by the plaintiff.
[44]PCB 26
Mr Kenneth Brearley, orthopaedic surgeon
64 The plaintiff was examined by Mr Brearley for the purposes of this application. Mr Brearley prepared a report dated 15 June 2013. In his report Mr Brearley set out his examination following way:
“A pleasant and well presented lady. Her presentation is vague and diffident. She gives no appearance of obvious depression during the interview and indeed is quite cheerful. She walks and moves normally. She is 160cm tall and weighs about 75kg.
Back:
There is no tenderness or deformity. Movements of the thoraco-lumbar spine are within the normal range in all directions.
Legs:
Straight leg raising is to 90 degrees on both sides. All deep reflexes are normal and sensation is normal in all areas. There is no wasting.”[45]
[45]PCB 33
65 Mr Brearley’s investigations were as follows:
“CT thoracic spine – 20.01.2005 – early degenerative changes.
Lumbar CT – 20.01.2005 – minor central bulge of L3-4 disc.
MRI lumbar spine – 02.04.2007 – lower lumbar disc desiccation. No significant bulge or protrusion at any level. Small disc extrusion at T12-L1. No canal stenosis or nerve root compression identified.”[46]
[46]PCB 33
66 Mr Brearley’s opinion was as follows:
“Chronic pain syndrome. It would seem that the psychological reaction has overwhelmed the physical injury to the point where the former is now of importance only in that it did precipitate her ongoing depression.
...
It is difficult to establish any physical injury and impairment of her back and legs at this time which is ten years after the work incident but both the physical injury which is responsible for her psychological condition and the latter condition itself preclude her in relation to employment.
...
It is not possible to exclude the psychological condition in this case for it is the major component of her illness and as a result of the probable ongoing physical injury, and more particularly, the psychological reaction, she is not fit for full or part-time work and this is permanent.
...
The prognosis. I find it difficult to identify any organic injury which would prevent her from returning to some form of work in the foreseeable future.”[47]
[47]PCB 34–35
67 It is clear that Mr Brearley could not find any physical injury or impairment resulting from the low back injury or symptoms in the plaintiff’s legs. Mr Brearley has accepted the plaintiff’s history and complaints and formed the opinion that the ongoing symptomatology is psychologically-based. Mr Brearley’s opinion does not assist the plaintiff in her claim for a physical injury serious injury certification.
Mr Thomas Kossmann, orthopaedic surgeon
68 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff for the purposes of medico-legal reporting in this application. Mr Kossmann’s report is dated 5 June 2013. Mr Kossmann took a history from the plaintiff that she regularly took the medications of Mersyndol Forte, Valium, Panadol Osteo, Pristiq, Pariet and Mobic. Mr Kossmann noted the plaintiff had attempted to return to work on three occasions; however, she was unable to return to her career as a nurse in aged care. Mr Kossmann also had a history that:
“At the time of the onset of her lumbar spine condition she worked in a general shop which she had to give up.”[48]
[48]PCB 38
69 This history is far from the established facts in this case. There was no indication that Mr Kossmann had any idea that the plaintiff continued to run both the Moyston General Store and be the proprietor of the Dunkeld Newsagency up until 2012. I do not accept that Mr Kossmann has a full, accurate and honest history from the plaintiff when he made his assessment of her condition.
70 Mr Kossmann’s opinion was as follows:
“Ms Cox has developed a chronic pain syndrome affecting her whole spine.
…
In my opinion Ms Cox has no work capacity. She was working as a Division Two Nurse in aged care; however I believe that her pain issues will not allow her to ever return to work; furthermore, her pain issues may be amplified due to her psychiatric issues. I recommend that she be seen and evaluated by a psychiatrist.
...
In my opinion Ms Cox is precluded in relation to employment or related activities. She has a chronic pain syndrome throughout her spine and furthermore, significant depression, including suicidal thoughts. In my opinion her incapacity will continue for the foreseeable future.”[49]
[49]PCB 40–41
71 Mr Kossmann has not had a full and proper history from the plaintiff, and consequently his opinion is based on the partial and selective history given to him by the plaintiff.
Dr Jeanne McGivern
72 Dr Jeanne McGivern prepared a report dated 6 December 2006 on behalf of the defendant’s insurer. Dr McGivern noted that the plaintiff gave a very vague description of her symptoms even when she was asked direct questions. The plaintiff complained of discomfort in her back which radiated into her buttocks and both legs. The plaintiff gave Dr McGivern the history that she worked a split shift totalling four or five hours a day for seven days each week in a mixed business which she owns and runs. She also managed to do all of her home duties, but was unable to do the heavier things in the garden such as whipper-snippering or lawn mowing.[50] Dr McGivern gave her opinion as follows:
“It is most likely that she sustained a minor soft tissue injury from which one would expect recovery in a matter of a few weeks. The incident appears to have been complicated by the onset of a secondary depressive illness which has made interpretation of the physical findings quite difficult.”[51]
[50]DCB 11
[51]DCB 12
73 In 2006, Dr McGivern’s opinion was that the plaintiff’s injury was of a soft tissue nature and that appropriate self-management programs would be the best course of action. She noted that the plaintiff was not committed or willing to perform self-management programs.[52]
[52]DCB 13
Mr David Brownbill, neurosurgeon
74 Mr Brownbill examined the plaintiff on behalf of the defendant for medico-legal purposes. He prepared a report dated 29 April 2010. The plaintiff gave Mr Brownbill the history that she owned a general store “in name only” which was operated by friends. She then leased it from 2005 until December 2009, since when she has been operating the shop, but with daily assistance from others. The plaintiff complained of having ongoing pain all over the body which has continued.[53]
[53]DCB 15
75 Mr Brownbill, after examining the radiological films and the patient, formed the following opinion:
“…There was no neurological abnormality of the upper limbs or lower limbs. There was no signs of radiculopathy or myelopathy.
Thoraco lumbar spinal CT scanning has shown minor degenerative changes, without significant disc protrusion.
...
… I consider that on probability this lady in the described fall on 3rd March 2004, suffered soft tissue injury to several area of the spine with resulting neck pain, headaches and mid and lower back pain.”[54]
[54]DCB 17
76 Finally, Mr Brownbill stated:
“This lady has suffered soft tissue injuries to structures about the lumbar spine with likely aggravation of pre existing lumbar spine degenerative changes but without neurological abnormality.”[55]
[55]DCB 18
Dr Roy Karna, rheumatologist
77 Dr Karna saw the plaintiff on behalf of the defendant’s insurer for medico-legal assessment. He prepared a report dated 19 March 2010. Dr Karna reported his examination as follows:
“Her lower back movements were surprisingly very good with full flexion and extension and lateral movements minimally restricted to the left and right. Straight leg raising was normal, peripheral reflexes were preserved and to measurement there was no diminution in muscle bulk in the right upper leg or the lower leg when compared to the left and equally there was a patchy non-anatomical, non-specific sensory loss in the right leg of questionable clinical significance. There were no features of occipital neuralgia.”[56]
[56]DCB 25
78 Dr Karna gave his diagnosis as follows:
“… I think it is quite likely that at onset she suffered initial soft tissue injury leading to the muscular pains and muscular spasms as described, but I believe that that injury has healed with no residual impairment or disability due to any structural musculoskeletal pathological injury. She has developed a fibromyalgia type pain syndrome which is generalised. There is no pathosociological connection between the initial muscle injury and the subsequent development of her generalised fibromyalgia pain syndrome.
This fibromyalgia pain syndrome relates to psychological factors and quite clearly there has been significant psychogenic stressors and psychological illness relevant during the course of her injury and thus on structural musculoskeletal grounds I can find no evidence of any defined injury.”[57]
[57]DCB 25
79 It is clear from Dr Karna’s report that in his opinion the plaintiff suffered minor physical injuries at the beginning and that her current symptoms have nothing to do with the work accident in 2004.
Mr Paul Kierce, orthopaedic surgeon
80 Mr Kierce reported to the plaintiff’s general practitioner. His report is dated 15 March 2007. Mr Kierce took a history from the plaintiff that she had suffered with backache on and off for many years prior to her injury in the course of her work as a personal carer at Pickford House, Ararat, in March 2004. Mr Kierce noted that the CT of the plaintiff’s lumbar spine did not show any specific pathology, but he thought there may have been a faint indication that there was a right-sided L5‑S1 disc bulge irritating the right first sacral nerve root. In his view, the plaintiff needed to have an MRI to clarify her diagnosis.
81 In a later report dated 13 April 2007 Mr Kierce noted that the plaintiff’s MRI was “pretty normal looking”. Mr Kierce went on to state:
“I have explained to her that all that she has is some minor degenerative change, consistent with her age and the only way to help her is to get herself physically fit with walking, swimming or bike riding and she needs to lose weight.”[58]
[58]DCB 62
Dr Hedley Griffiths, rheumatologist
82 The plaintiff was sent to Dr Hedley Griffiths by her general practitioner, Victoria Blackwell. In a report dated 7 April 2008 Dr Hedley Griffiths set out to Dr Blackwell the plaintiff’s condition as follows:
“I think Rhonda does have fibromyalgia, and as such, I reassured her that she does not have any serious pathology. I suggested that she should go back to her yoga classes, and that she should be doing other low impact aerobic exercises such as bike riding, swimming, tai chi, or even gym work.”[59]
[59]DCB 63
83 The plaintiff is not seeking to prove that she has fibromyalgia as part of her work injury in March 2004. It is clear from Dr Griffiths’ opinion that the plaintiff does not have any serious pathology.
Mr Roderick Cunningham, orthopaedic surgeon
84 The plaintiff’s general practitioner, Dr Michael Forster, referred the plaintiff to Mr Cunningham. Mr Cunningham reported back to Dr Forster in a letter dated 7 June 2010. In his letter, Mr Cunningham noted that the plaintiff described a feeling of discomfort in the right leg, although this is not a characteristic sciatic distribution. The plaintiff complained that her right foot feels “restricted” but she did not have any significantly altered sensation or symptoms. In his examination of the plaintiff Mr Cunningham noted that she was quite mobile and had reasonably free movement. He took a history from her that she was running two general stores, one in Dunkeld and one in Moyston, which he described as a considerable workload for her. Mr Cunningham also recommended that the plaintiff engage in physical exercise in order to improve her fitness. In conclusion he noted as follows:
“With fibromyalgia it may be that she would do better with Amitriptyline as her antidepressant rather than her current antidepressant, although I obviously have no real knowledge of how her depression has been progressing. Amitriptyline, however, does have quite reasonable effect in a situation of so called fibromyalgia.”[60]
[60]DCB 64
85 Mr Cunningham obviously formed the opinion that the plaintiff was suffering from fibromyalgia, consistent with the opinion of Hedley Griffiths.
86 I do not accept that the plaintiff has sufficient support from the medical opinions tendered in this application to establish that she has a serious long-term impairment of her lower back.
Psychological/psychiatric injury to the Plaintiff
87 The plaintiff claims that she now has an adjustment disorder with depressed mood and a chronic pain disorder as a result of the injury to her lower back. She says that the pain has caused her to now be depressed as a result of its effect upon her.
88 The history of treatment in this regard is that the plaintiff attended upon Dr Blackwell on 31 July 2007 with symptoms of depression.[61] Dr Blackwell prescribed the plaintiff Dothiepin, 50 milligrams per day. For the remainder of 2007 the plaintiff continued to see Dr Blackwell until 11 December 2007 when she was referred to the South West Healthcare Psychiatric Assessment Services.[62] After that assessment the plaintiff was placed on Venlafaxine, 150 milligrams daily.
[61]PCB 24
[62]PCB 24
89 The plaintiff attended the South West Healthcare Psychiatric Assessment Services on 20 December 2007. There she presented with symptoms of depression and self-harm. At that time the plaintiff was attributing her difficulties to the pain and inability to get back to work.[63]
[63]Exhibit 6
90 The plaintiff continued to be consulted with by the South West Healthcare Psychiatric Services until 23 December 2010 when she was discharged from that service. At that time it was reported by the plaintiff’s daughter, Narelle, that the plaintiff was well and busy with shop work and excited about Christmas. The plaintiff has not returned to or received specialist psychiatric or psychological services since that time. The plaintiff’s only ongoing treatment in relation to her psychiatric condition is supervised by her general practitioner Dr Blackwell and prescribing medication. I note that there is not an updated report from Dr Blackwell in the materials tendered in this application.
91 The plaintiff, in her evidence, stated that:
“I have withdrawn from society as in such. I just don’t like crowds, I don’t enjoy being out of Martin Street really.”[64]
[64]T107, L6–8
92 I do not accept the plaintiff’s description of her current psychiatric symptoms and her withdrawal from crowds and society in general. The plaintiff has been actively conducting businesses both at Moyston and involved in the business at Dunkeld up to 2012. In the Dunkeld and District News for December 2011 the plaintiff is thanked for her generosity in making donations to community events.[65] At the present time she is currently being paid a carer’s pension for provision of services to her partner’s mother. I do not accept that the plaintiff would be able to perform this task if she was as debilitated psychiatrically as she represents to this court. I do not accept her description of her psychiatric symptoms.
[65]Exhibit 12
Medical opinions on psychiatric/psychological injury
Dr Jayanta K Deb, psychiatrist, South West Healthcare
93 Dr Deb prepared a report dated 21 May 2009. In his report Dr Deb stated that Hamilton Community Psychiatric Services had managed the plaintiff from December 2007 to July 2008 after she had been referred to that service by her general practitioner with depressive symptoms and suicidal ideation.[66] At that time she was prescribed Amitriptyline and Prothiaden and Escitalopram Oxalate, all of which are anti-depressants. The plaintiff reported that she had no significant improvement as a result of those medications. Dr Deb took a past history from the plaintiff that she had had a previous attempt at ending her life in adolescence when she was approximately eighteen years old. At that time the plaintiff was hospitalised.[67]
[66]PCB 21
[67]PCB 22
94 Dr Deb changed the medication to Venlafaxine XR and psychological intervention. Ultimately he diagnosed the plaintiff as suffering an adjustment disorder with depressed mood. Dr Deb was not able to comment on the plaintiff’s capacity for work at that time. He stated that at his last contact in July 2008 the plaintiff appeared mentally stable.
Dr Praveen Kumar
95 Dr Kumar prepared a report for Dr Blackwell dated 6 January 2011.[68] At that time, Dr Kumar assessed the plaintiff’s depressive symptoms as being associated with various life stresses, and she had expressed thoughts and plans of committing suicide. In this report Dr Kumar sets out that the plaintiff’s family have reported that she was doing much better and functioning well, and felt that there was no longer any need for psychiatric services to be involved. In effect this letter was a letter discharging the plaintiff back to the care of Dr Blackwell.
[68]Exhibit 5
Dr David Weissman, psychiatrist
96 Dr Weissman prepared two reports for the purposes of this application, dated 29 July 2013 and 17 January 2014.
97 In his first report in July 2013 Dr Weissman took a history that the plaintiff was currently on medication of Pristiq, 100 milligrams per day. She was not at that time seeing a psychiatrist or a psychologist.[69] In his examination comments Dr Weissman noted that the quality of the plaintiff’s affect was moderately depressed, flat, subdued, and restricted in range.[70] Dr Weissman noted in his discussion section of his first report that there was no obvious pre-existing or unrelated psychiatric condition or impairment in this case for the plaintiff. I note at this point that Dr Weissman was not advised by the plaintiff of the death of her mother and father. She did not mention the failure of both the Moyston business and the Dunkeld newsagency. She did not mention the fact that she was made a bankrupt in January 2012.
[69]PCB 64
[70]PCB 66
98 Although Dr Weissman did not have a full and accurate history from the plaintiff, he made the following comments in his report:
“○ The claimant continues to suffer from a moderate mixed reactive depressive and anxiety syndrome with pain focus and pain preoccupation as a consequence of, or secondary to, her work-related pain and injuries, disabilities and dysfunction, limitations and restrictions, changes and losses to her lifestyle and functioning.
○ She has sustained and developed a chronic Adjustment Disorder with Depressed and Anxious Mood of moderate intensity or severity in this regard.
○ The claimant also seems to have a degree of pain focus and pain preoccupation with elevated health concerns. It seems that her pain has spread beyond the initial site of injury.
○ On the balance of probabilities, there are psychological, functional and ‘non-organic’ factors amplifying her perception, sensation, experience and presentation of pain.
○ On the balance of probabilities, she has also sustained and developed symptoms and features of a Chronic Pain Disorder, associated with psychological factors and a general medical condition.”[71]
[71]PCB 68
99 In Dr Weissman’s opinion in respect of the plaintiff’s ability to work, he thought that there was an overlap between the physical injury and a diagnosis of chronic pain disorder. Dr Weissman stated:
“On purely psychiatric grounds alone, Ms Cox is suffering from a moderate mixed reactive depressive and anxiety syndrome.
On purely psychiatric grounds alone, I cannot state, categorically, that she is totally incapacitated for all work (suitable duties).
On purely psychiatric grounds alone, Ms Cox probably has a partial capacity for suitable duties.”[72]
[72]PCB 69
100 In his later report dated 17 January 2014, Dr Weissman noted an improvement in the plaintiff’s psychiatric condition. He noted that she was still not seeing a psychiatric or a psychologist.[73] He noted that the plaintiff’s affect had improved from being moderately depressed to mildly depressed.[74]
[73]PCB 70D
[74]PCB 70F
101 In the diagnosis section of his report Dr Weissman stated as follows:
“Ms Cox should also be examined by an orthopaedic surgeon or spinal surgeon and an occupational physician.
· On this occasion Ms Cox presented with only relatively mild mixed reactive depressive and anxiety symptoms. This represented a relative improvement compared with her moderate mixed reactive depressive and anxiety symptoms from her first assessment six months ago. She actually denied a Depressed and Anxious Mood though she does have some mild mixed reactive symptoms.
· On this occasion I believe she is only suffering from a mild chronic adjustment disorder with depressed mood and anxious mood and not one of moderate intensity or severity.”[75]
[75]PCB 70I
102 Dr Weissman diagnosed the plaintiff as suffering from:
“1. chronic Adjustment Disorder with Depressed and Anxious Mood of mild intensity or severity;
2. probably some symptoms and features of mild chronic pain disorder, associated with psychological factors in a general medical condition … .”[76]
[76]PCB 70J
103 In the opinion of Dr Weissman the plaintiff probably does not require counselling from a clinical psychologist but should continue seeing her general practitioner for supportive therapy.[77] This level of treatment recommendation from Dr Weissman is indicative of the mild nature of the psychiatric symptoms suffered by the plaintiff.
[77]PCB 70K
Dr Stephen Stern, psychiatrist
104 Dr Stephen Stern examined the plaintiff on behalf of the defendant and prepared a report dated 17 March 2010. It is to be noted that Dr Stern was not given any history of the business and family-related stressors that the plaintiff was suffering up to that time. Dr Stern’s opinion was that the plaintiff had suffered an adjustment disorder with depressed mood and chronic pain disorder. As Dr Stern did not have a full and complete history from the plaintiff, his opinion in respect to her psychiatric condition is not based on the full set of facts that are relevant in this application.
Consequences of the injuries to the Plaintiff
105 The plaintiff has sworn three affidavits dated 2 June 2010, 14 February 2013 and 18 March 2014 in support of her application. In those affidavits, the plaintiff has set out the consequences of the physical and psychiatric injuries to her.
Sleep
106 In her final affidavit, the plaintiff deposes that she wakes up approximately one to two times per night due to pain. The plaintiff’s complaint of interruption to her sleep relies entirely upon whether I accept her evidence in this regard. I have previously dealt with the credit of the plaintiff, and find her to be unreliable and exaggerating her position in an attempt to advance her application in this case.
107 If I accept that the interruption to a person’s sleep on a consistent basis is a considerable consequence. In this particular case I am not prepared to accept that the plaintiff suffers from an interruption to sleep that would properly be described as a “very considerable” consequence for her.
Pain
108 The plaintiff in her final affidavit states that she still gets pins and needles in her legs, with the right leg being worse than the left. She also states that she gets headaches. I am unable to see the connection between the back injury the plaintiff complains of and the headaches that she complains of now. I also note that she does not have any support from the medical practitioners who examined her lower back to determine that she has pains referred to her legs from her low back injury.
109 In her evidence, the plaintiff stated:
Q:“What are the problems you say you’ve got with car travel?‑‑-
A:I cannot sit in the car for long periods of time. I have pins and needles still in my feet. They go numb in the car, and I am very uncomfortable.
Q:Pins and needles in your feet?‑‑-
A:And legs.
Q:And so you stop and stretch your foot and then continue on on the journey?‑‑-
A:Yes, it doesn’t relieve the pins and needles but I can have a coffee.”[78]
[78]T50, L9–16
110 I do not accept that there is any valid reason for the plaintiff to suffer from pins and needles in her feet based on the medical evidence in this case. I do not accept the plaintiff’s evidence in this regard.
111 The plaintiff in her evidence also stated that she was prevented from going back to work due to her pain. She stated as follows:
Q:“Which of the restrictions do you say would prevent you from working?‑‑-
A:Sir, my legs, my mental condition and my back.
Q:With respect to your legs what would stop you from working?‑‑-
A:Sorry?
Q:With respect to the legs ‑ ‑ ‑?‑‑-
A:Yes, sorry ‑ ‑ ‑
Q:- - - how do your legs stop you from working?‑‑-
A:They go numb, I have pins and needles. The feet just are excruciatingly sore.
Q:And how often does that happen?‑‑-
A:It happens usually daily if I am on my legs for a long stretch of time.
Q:How long is a long stretch of time?‑‑-
A:Anything over an hour.
Q:And your back, in what way did that restrict you from working?‑‑-
A:The pain across the back is very dominant. It does go into muscle spasms on occasions if I’ve jarred it slightly wrong it’s painful, and it doesn’t like being upright for long periods, so I usually go and have a lay down and I take medication for it.”[79]
[79]T106, L14–30
112 When this evidence is seen in the light of the whole of the medical evidence in this case combined with the factual matrix making up the plaintiff’s work history since the time of the injury to her back, I do not accept that these complaints are genuine and accurate.
Medication
113 The plaintiff deposes that she takes medications of Mersyndol Forte, Panadol Osteo, Lyrica, Pristiq and Nexium. Each of these medications is prescribed for her by Dr Blackwell. As previously noted, Dr Blackwell has not prepared an up-to-date report in respect of her treatment of the plaintiff.
114 It is in the normal course of these types of applications a matter of fact and degree as to whether the necessity to take medication on a daily or constant basis is a “very considerable” consequence. In this particular application the prescription of the medication and whether the plaintiff actually takes it depends on an acceptance of her reporting of symptoms and complaints first of all to the doctors, and secondly to this court.
Ongoing treatment
115 The ongoing treatment for the plaintiff in this case is supervised by her general practitioner Dr Blackwell. The treatment now consists solely of the prescription of medication referred to in the previous section of these reasons. I do not accept that the regular attendance upon her general practitioner for supervision of her medication is a “very considerable” consequence for this plaintiff.
Activities of daily living
116 The plaintiff in her evidence stated she was limited in how much gardening she could do. Her evidence was:
Q:“Well, do you have problems doing gardening?‑‑-
A:I limit myself to what I can do on the day. I have 15 minutes doing something, and then I will stop and have a coffee and maybe a rest, and a few painkillers, sir, but I enjoy being outside.
Q:So you run the garden?‑‑-
A:We both are in the garden, sir.”[80]
[80]T51, L3–8
117 In Mr Fitzpatrick’s evidence he stated that the plaintiff did the lighter gardening work and he did the heavier gardening work.[81] I do not accept that Mr Fitzpatrick fully supported the plaintiff’s proposition that she does very limited gardening work.
[81]T112
118 The plaintiff deposed that approximately six months before March 2014 Joyce Fitzpatrick had moved into her family home. The plaintiff deposed that she is now in receipt of a carer’s allowance from Centrelink which she receives for looking after Joyce.[82] I find it hard to reconcile that the plaintiff’s activities of daily living are limited to the extent she says, if at the same time she is in a position to be the carer of Joyce Fitzpatrick and receive the carer’s allowance from Centrelink for doing so. I do not accept that the limitations that the plaintiff suffers to her activities of daily living are “considerable”.
[82]PCB 10A
Loss of earning capacity
119 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – 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).
120 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.
121 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
122 It was agreed between the parties that the plaintiff whilst working as a Division 2 Nurse in an aged-care facility was earning a gross weekly wage of $353 for 15 hours’ work.[83] The plaintiff’s claim in this case is that she cannot do any work due to her physical and psychiatric injuries.
[83]PCB 77
123 The history of the plaintiff’s work between 2004 and now must be examined carefully. At the time of the accident in 2004 she was working 15 hours a week as an Aged Care Division 2 Nurse. At the same time she was conducting the Moyston General Store business. After she ceased her employment with the defendant the plaintiff continued to work 35 hours a week in the Moyston store, according to her treating doctors at that time.
124 The plaintiff stated that she leased out her business in the years 2006 to 2009.[84] The plaintiff went on to say that she had no idea how much rent she was paid for leasing that business out between the years 2006 and 2007. I find this statement by the plaintiff unbelievable. I note that it coincided with her commencement of not submitting her income tax returns from the year 2007 onwards.
[84]T13
125 The plaintiff’s mother died in 2010.[85] The plaintiff had lived with her mother in the six years prior to her death. In that time the plaintiff was in receipt of a carer’s pension for her mother.
[85]T30
126 After her mother passed away, the plaintiff was by that stage back in the Moyston General Store conducting the business. She ran that store until January of 2012. At the same time she became the proprietor of the Dunkeld Newsagency with her daughter and son-in‑law. The plaintiff clearly had a capacity to work in the period 2010 through to 2012. The reason that she ceased working in those businesses was that she became a bankrupt in 2012.[86]
[86]T28
127 From the latter part of 2012 onwards, the plaintiff has been in receipt of the Carer’s Pension from Centrelink for the care of her partner’s mother, Joyce Fitzpatrick. This work entails 10 to 12 hours a week, according to the plaintiff.[87] The plaintiff receives a gross figure of $375 carer’s pension for caring for Mrs Fitzpatrick.[88] The plaintiff continues to care for Mrs Fitzpatrick and continues to receive the Centrelink benefit for that service to her.
[87]T32
[88]T33
128 Mr Fehring submitted that the receipt of a Carer’s Pension is not earnings. I accept the proposition that the receipt of a carer’s pension is not the same as an employer/employee relationship. However, the ability of the plaintiff to perform that carer’s task clearly indicates that she has the ability to work in suitable employment. The doctors in this case say that the plaintiff has a capacity to work in alternative suitable employment. I find that the plaintiff has the ability to work in suitable employment and chooses not to. In fact, in her own evidence she stated she has not looked for work.[89]
[89]T33
129 In the period when the plaintiff had her shop leased out, and before she resumed control of the business at Moyston, she worked as a part-time cleaner of log cabins in Dunkeld. She stated that she did it for approximately one year.[90]
[90]T33–34
130 It is clear from all of this evidence that the plaintiff has continually been involved in employment or physical activity which indicates a capacity for her to engage in alternative suitable duties to earn income.
Conclusion
131 I find that the plaintiff has not satisfied the statutory test for leave to bring proceedings for pain and suffering damages. I find that the consequences suffered by her as a result of her low back injury, when judged by comparison with a range of cases of possible impairments, cannot be fairly described as being more than “significant” or “marked” and as at least being “very considerable”. The application by the plaintiff for leave to bring proceedings for pain and suffering in respect of the physical injury to the low back is dismissed.
132 I find that the plaintiff has failed to prove that she suffers from a psychological or psychiatric condition that meets the “severe” test as set out in the Act. The application by the plaintiff for leave to bring proceedings for pain and suffering for psychological or psychiatric impairment is dismissed.
133 In respect of the plaintiff’s loss of earnings capacity, based on the reasons outlined above, I find that the plaintiff has failed to establish that she has any reduction in her capacity to return to suitable alternative duties of employment. I find that as a result of her alleged low back injury or her psychiatric injuries arising from the incident in 2004 she has retained a capacity for alternative duties in employment and has not satisfied the test of 40 per cent reduction in “without injury” earnings.
134 I dismiss the plaintiff’s application for leave to bring proceedings to recover damages for pain and suffering and loss of earning capacity arising out of her physical injury to her low back or a psychiatric injury arising from her employment with the defendant.
135 I will hear the parties on costs.
- - -
0
1
0