Curavic, Sandra v TAC

[2009] VCC 1463

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-08-01937

SANDRA CURAVIC	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 September 2009
DATE OF JUDGMENT:	29 October 2009
CASE MAY BE CITED AS:	Curavic, Sandra v TAC
MEDIUM NEUTRAL CITATION:	[2009] VCC 1463

REASONS FOR JUDGMENT

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Catchwords: Transport Accident Act 1986 – Section 93 – serious injury – impairment to the lumbar spine – psychiatric impairment.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Mighell SC with	Shine Lawyers
Mr G K Coldwell
For the Defendant	Mr P A Scanlon QC with	Solicitor for the TAC
Mr P J Gates
HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to Section 94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 3 March 2003 (“the said date”).

2 Section 94(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied

that the injury is a serious injury.”

3          The definition of serious injury relied upon by the plaintiff is under Section 93(17)(a) - “a serious long term impairment or loss of a body function” and also sub section (c) - “a severe long term mental or severe long term behavioural disturbance or disorder”.

4          The body function relied upon by the plaintiff in this case is the lumbar spine and psychiatric impairment.

5          The inquiry under sub paragraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

6          The serious injury defined by sub paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.

7          In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”: see Humphries v Poljak [1992] 2 VR, at 140-1.

8          The plaintiff relied on two affidavits and gave viva voce evidence. 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

9          The plaintiff is presently aged forty six, having been born in Croatia on 29 January 1963. She migrated to Australia in 1972 and attended secondary school at Thomastown High School.

10        After leaving school, the plaintiff worked in various jobs, including factory work, waitressing and home help. She married in 1980.

11        The plaintiff starting working for Qantas in March 1998 as an airline service operator. She was medically examined by Qantas before commencing work. As of the said date, the plaintiff was working fulltime on a rotating roster in the ramp services division which involved cleaning aircraft with a cabin cleaning crew.

12        The plaintiff’s work was quite heavy and physical, requiring bending and lifting on a constant basis. She had no problem doing that work prior to the said date.

13        The plaintiff deposed that prior to the said date she was in good physical shape. She had the occasional neck and back ache but nothing which stopped her working or needing treatment or medication. Her work was very physical and most people working with her did get aches from time to time. Her mental state was fine and she was working full time enjoying her work.

14        The plaintiff had had a previous car accident in 1985, after which she had a sore neck for a time. She was involved in another minor car accident in 1999.

15        The plaintiff had suffered from anxiety and panic attacks on occasions between 1992 and 1997 mainly related to the Croatian War. She and her family returned to live in Croatia in 1990 and planned to stay there for a few years but the War took hold and they came back to Australia at the end of 1991.

16        In cross examination, the plaintiff said at times before the said date she had a bit of a back problem but not for many years prior thereto. She could not remember making a claim which included her neck, shoulder and back in May 1996 but agreed that in 1988 she made a claim for her neck and back while working for National Can Company. She disagreed this claim included her low back.

17        When shown her 1996 claim form signed by her, the plaintiff confirmed the contents thereof and agreed that she had in fact made a claim against her employer at that time, the Moreland City Council. She did not receive worker’s compensation payments in relation thereto and could not remember having any medical treatment.

18        The plaintiff could remember very little about anything in 1996 but could recall around that time she had treatment from a general practitioner in relation to stress and anxiety and she was prescribed Aurorix which she took for severe panic attacks. These panic attacks did not continue from that time until the accident.

19        The plaintiff was cross examined about an examination by Dr Chris Baker in July 1996. She could not remember seeing him. She disagreed that at that time she was frustrated by the fact she could not undertake certain activities, such as gardening or housework.

20        Before the said date the plaintiff had a lot of hobbies and interests, including gardening, dancing, socialising and going to her parent’s beach house at Rosebud.

21        In cross examination the plaintiff denied having financial problems in 2002 and said these problems started in 2004.

22        The plaintiff was involved in a transport accident at Tullamarine Airport on the said date whilst a front seat passenger in a car which collided with a belt loader on the tarmac (“the accident”).

23        The plaintiff’s head was smashed into the windscreen as she was not wearing a seatbelt. She experienced intense pain in her head and was taken by ambulance to the Royal Melbourne Hospital.

24        After being kept for observation, the plaintiff was released home, and the following day she attended her general practitioner, Dr Cross, at the Harding Street Medical Centre in Coburg. At that stage the plaintiff was aching all over her body. She had pain in her back and right buttock, neck and head.

25        The plaintiff returned to work about three weeks after the accident. She was very sore at that time with back, right leg and neck pain and headaches but she was keen to get back to work. She started physiotherapy with Catherine Witty in Coburg and continued to see Dr Cross.

26        On her return to work, the plaintiff was initially on reduced hours on light duties which involved taking off and putting on pillow slips and changing the linen on planes. However, her back and neck pain persisted and she had difficulty coping with these duties because of the bending and stretching involved. She was very sore and tired after work and could not manage her home duties.

27        The plaintiff increased her hours to about six hours a day, and by late 2003 she had built up to eight hours a day on normal duties.

28        From the date of the accident the plaintiff has been troubled by relentless back pain and spasms going into her right leg. The initial neck pain went away but the back pain persisted, and in the middle of 2004 she started to take Panadeine Forte and some Codeine but this medication made her sick.

29        The plaintiff advised Qantas that she was not coping with her normal duties but they would not give her lighter ones. She got through work with physiotherapy and taking Panadol and she was determined to keep working as she did not want to lose her job or rely on WorkCover benefits.

30        By the middle of 2004, the plaintiff needed Valium for pain and Stilnox to help her sleep. She also started to gamble too much on the poker machines.

31        In 2004, the plaintiff took four months’ leave and went to Croatia because she could not cope with her pain. After her return to work until November 2004 the plaintiff had some time off work due to back pain but she could not recall how many days.

32        The plaintiff’s back deteriorated to the point when in late 2004 and early 2005, she could no longer cope with her work. Physiotherapy was not helping. She had CT and MRI scans which showed a disc problem at L4-5. The plaintiff had referred pain into both legs before November 2004. She had problems sitting and squatting and moving her spine.

33        In cross examination, the plaintiff agreed she was working full time on normal duties in November 2004 when she hurt herself getting into a truck. Thereafter, she was reduced to light clerical duties for about four hours a day, two days a week, and she never returned to her old job.

34        Because of her pain, the plaintiff’s home life became seriously affected. She was unable to do usual things around the home and became depressed and her relationship with her husband seriously deteriorated. It all fell apart for her and she needed to see a psychologist and was referred to Libby Nottle and put on antidepressant medication.

35        Because she is no longer working, the plaintiff has lost her independence and sometimes feels suicidal and one time recently rang up a girlfriend for help. At times she has been suicidal and on two occasions in 2005 she had come very close to killing herself.

36        The plaintiff explained that after the accident she could not deal with the work, the way she was treated and that the spot where the accident happened was not fixed. She was also depressed because she could not do things and it was piling up. At times she feels like her depression is getting worse.

37        The plaintiff was referred for further spinal treatment to a spinal management clinic.

38        In mid 2005, the plaintiff was also told by her employer that she could not go to Croatia for holidays because of her injury. The plaintiff had to go off work on stress leave in June 2005. She put in a stress claim on the basis that management would not let her apply for another job and she was paid compensation.

39        The plaintiff was sacked by Qantas in about March 2006. Since that time she has been in receipt of WorkCover weekly payments.

40        The plaintiff has pain which shoots down both legs and she has numbness and tingling in her legs and both feet. On one occasion the numbness in her left foot was so disturbing she went to St Vincent’s Hospital and was kept there overnight.

41        The plaintiff also has at least a dull pain in her back and at times it gets very sharp and feels like a toothache. She has back pain every day, all day in her lower back going down into her bottom and at times into her groin and down her legs to her feet. Her right leg is more painful at times, the left seems to go more numb.

42        The plaintiff sometimes gets numbness in her hands, right shoulder and neck. She suffers headaches. She agreed in cross examination that from the top of her head to her toes, with the exception of her middle back, she has problems

43        Since the accident the plaintiff has never been free of back pain. She cannot sit or stand for long and always has to move. It varies how long she can sit for half an hour or as little as ten minutes depending on the pain that day.

44        On a good day the plaintiff can get around and do shopping and normal things but on a bad day she needs to spend time lying flat in bed to ease her pain.

45        The plaintiff’s back pain has affected her ability to live normally and enjoy life. It has affected her social life and her ability to play with her grandchildren. The plaintiff cannot drive for prolonged periods and she cannot complete jobs at home. She has problems walking and trouble sleeping.

46        The plaintiff believes that her back condition has worsened because the slightest thing can aggravate it to the point where she has to rest on the floor or on the bed for long periods. The plaintiff goes to the poker machines to forget her problems. When she goes there, she sits down to play but she has to move and get up. She did not know how long she would generally be sitting. It would vary between ten and fifteen minutes.

47        The plaintiff does not meet up with people she knows at the pokies. She occasionally talks to people whilst there but she tries not to.

48        In cross examination, the plaintiff agreed she drove to the poker machines, to do her shopping and to visit people but said she was not always able to drive. At times she simply cannot drive because of her back. That happens many times during the year and last happened two days before the hearing. She drives if her back allows her.

49        The plaintiff said she was not crippled. She does her housework at her own pace. She shares home duties with her husband and children. On a good day, if she paces herself she can do it and if she cannot, she does not.

50        She would be capable of raking up some leaves in a small place but she had not tried. She could bend over and pull out some plants, bending her knees, but she cannot do much more because her back hurts.

51        The plaintiff went to Olympia Rehabilitation Hospital in 2007 for assessment but she was told she was not in an appropriate psychological state to start the pain management program. In cross examination, she denied she did not participate in this program because she went to Croatia.

52        The plaintiff has been to Croatia in 2006, 2007 and 2008. Last year she went for a bit over three months. She used a hot water bottle on the plane trip. She saw a local doctor whilst there who prescribed medication like Panadol.

53        In September 2008, the plaintiff moved out of the family home in Coburg to a rented property in Craigieburn. The plaintiff is separated from her husband but lives with him and their son and daughter.

54        The plaintiff cannot look after her three grandchildren on her own for very long which saddens her.

55        The plaintiff has become very withdrawn and feels like she has lost her way. She is very depressed and frustrated. At times when it gets tough she resorts to gambling and alcohol.

56        In examination in chief, the plaintiff said that she had a problem with gambling before the accident.

57        In cross examination, she said that she might have gone to see a doctor about something else in late 2002 and mentioned the pokies but she did not think she would go to a doctor and just tell her she had problems with gambling.

58        The plaintiff said the problem with gambling too much started in the middle of 2005 and she agreed that before the accident she was under control. She was cross examined at length about the entry in Dr Cross’ notes on 14 November 2002 and agreed she had a problem with gambling that caused her to go to the doctor on that date and her gambling was under control, but then agreed the entry suggested it was not under control.

59        For the last three months the plaintiff has received treatment from a psychologist at Banyule Community Health in Coburg for her gambling.

60        The plaintiff also has counselling for her alcohol dependence at Moreland Hall once a week. Before the accident she was a social drinker but she now drinks up to ten drinks or more than half a bottle of scotch per day, mixing it with ‘Breezers’. In the past she has used cannabis for pain relief but she no longer does so.

61        The plaintiff relies too much on her children for support. Before the accident she was very strong, holding the family together.

62        The plaintiff continues to have psychological counselling, seeing Libby Nottle once a week. She has managed to stay off antidepressant medication which gave her a funny feeling. She took the medication in Croatia but is trying to stay off it now.

63        The plaintiff sees Dr Cross regularly. The plaintiff takes Valium prescribed by Dr Cross and uses up to eight tablets of Panadol per day. It could be three times a month that she takes this level of tablets and sometimes she goes for days without them. The plaintiff has not had any physiotherapy treatment for many years and does exercises herself at home.

64        The plaintiff does not take anything stronger than Panadol because she is allergic to strong medication and she had to be treated in the John Fawkner Hospital with a gastric problem in 2005.

65        The plaintiff would like to work but she does not feel capable, having enough trouble coping with day to day problems. She feels her body has given up on her too early in life. She loved her job at Qantas and intended to continue working there if she could. She tried to go back to work because she loved her job and hated WorkCover and just wanted her life to continue.

66        The plaintiff could not do a clerical job because there were lots of times when her pain was not predictable. She could not do call centre work because “she cannot even function and cannot even do her own personal things”.

67        In the three and a half years since the accident the plaintiff has not applied for any other job or made any attempt to get employment and has been in receipt of compensation. She is presently receiving $450 in WorkCover payments per fortnight and getting total incapacity certificates from Dr Cross.

The Plaintiff’s Medical Evidence

68        The plaintiff attended the Royal Melbourne Hospital on a number of occasions between 1983 and 2006. The dates of such attendances seem somewhat confusing in the Hospital report.

69        It was noted the plaintiff attended for an anxiety attack on 16 July 1984. She attended on 8 May 1995 with generalised body flushes and associated anxiety. She had a normal gastroscopy on 11 September 1996.

70        The plaintiff presented to Emergency on 14 February 1997 with a two day history of chest pain.

71        On 14 November 1983, she presented with right renal colic. On 20 November 1983, she passed a large stone.

72        There was another episode of renal colic on 22 August 1984.

73        On 4 September 2006, she attended with right upper quadrant pain and vomiting.

74        The plaintiff was seen on 17 October 1986 with respect to right upper quadrant tenderness consistent with gallbladder pain. It was noted she had had multiple visits to the hospital with respect to anxiety attacks with normal vital signs and normal blood testing.

75        When seen in 1996, she complained of central chest pain, nausea and headache.

76        The gastroenterologist saw her on 9 May 2006 with respect to her epigastric pain.

77        On 16 May 1996, the plaintiff attended with occipital headaches, and throughout 1996 she continued to complain of tenderness of the epigastrium and anxiety attacks. Her last attendance was on 11 September 1996 when she had a gastroscopy.

78        Dr Cross first saw the plaintiff a few days after the accident, at which time she had severe generalised spasm and pain of her paraspinal muscles, the length of her back and also her neck girdle. X-rays were ordered and they were normal and he diagnosed a severe muscular ligamentous injury. At that time the plaintiff also had severe continuous quite localised headaches. A CT scan of her brain was organised which was normal.

79        Dr Cross thought, as of April 2003, the plaintiff had made a good recovery, partly due to her determination to get back to work even when she was having some muscle spasm and pain. Dr Cross noted that the physiotherapy was helping enormously.

80        At that time the plaintiff was working light duties six hours a week and looking to return to normal duties the week after.

81        Dr Cross considered that the plaintiff would need to remain on light duties for several weeks more but, in view of her previous good health and her determination to return to her normal work, she anticipated no long term injury.

82        In early May 2003, there was a family crisis and the plaintiff experienced increasing pain. On 15 May 2003, the plaintiff was severely affected by anxiety and was unable to sleep and was suffering frequent panic attacks. She agreed to see Libby Nottle, psychologist.

83        Dr Cross next saw the plaintiff on 26 May 2003 and by 12 June 2003 she considered the plaintiff was continuing to improve. Her panic attacks were milder and her sleep energy and motivation was better. There was a marked deterioration, however, by 3 July 2003, the plaintiff’s pain was much worse and had changed in its distribution, including her neck and across the top of her shoulders and in her lumbar area.

84        Dr Cross at that stage had a long discussion with the plaintiff. She felt that the plaintiff’s physical injuries should have well and truly healed by now and told her that she probably had a pain syndrome in addition to a grumbling depression.

85        Dr Cross noted that the plaintiff had previously had an anxiety illness in 1996 into 1997 which responded well to Arapax but since then there had been no recurrence. Further, she noted that prior to the accident the plaintiff had had a number of minor back musculoskeletal injuries over the years but she did not consider her to have a pre existing chronic back complaint.

86        Dr Cross noted attendances where the plaintiff complained of neck pain in May 1994, January 1997, January 1999, April 1999, and January 2000.

87        As of July 2003, Dr Cross hoped with the resolution of the plaintiff’s current pain state she would be able to fully resume her pre injury duties. Dr Cross was supportive of a return to work plan starting in October 2003.

88        In December 2004, Dr Cross reported that a return to work plan at that time should be individualised, preferably with the help of a physiotherapist, and thought the current plan was likely to flare up the plaintiff’s pain considerably.

89        In June 2005, Dr Cross wrote to WorkCover, supporting the plaintiff’s request for annual leave due in July of that year.

90        Dr Cross further reported in June 2006, noting the early development of anxiety and depression as a result of the plaintiff’s chronic pain and how that had settled by the time the plaintiff returned to work in 2003.

91        Dr Cross noted the performance of normal duties by October 2003 but that the plaintiff’s back pain flared significantly and a CT scan was organised.

92        The plaintiff represented with a severe flare up in November 2004 after a shortage of cleaning staff had resulted in a prolonged period of heavy cleaning work on the trucks, instead of being rotated through a range of duties.

93        The referral to Libby Nottle in April 2005 was mentioned but it was noted that there were no symptoms of anxiety or severe depression at that stage and there was no need for oral depressants.

94        In June 2005, the plaintiff had problems with a fellow worker getting a job she was interested in, after which the plaintiff had a panic attack while at the airport. Thereafter, the plaintiff developed symptoms of severe depression and anxiety, initially being treated by Dr O’Gorman, who commenced her on Lovan and initiated a new WorkCover claim.

95        Dr Cross noted the plaintiff’s depression was compounded by high levels of conflict at home caused by the plaintiff’s inability to do her normal household duties. In August 2005, the plaintiff was to the point of having active suicidal ideation and plans and Dr Cross referred her to Dr Al Humrany, psychiatrist.

96        Dr Cross noted that after being dismissed by Qantas in 2006, the plaintiff’s physical and mental state had remained fairly static.

97        In her last report dated February 2009, Dr Cross noted the plaintiff had very severe depression in the latter half of 2006 with active suicidal ideation. The plaintiff developed some maladaptive coping behaviour, in that she was both gambling and drinking heavily in order to cope.

98        Dr Cross noted that the plaintiff had continued to slowly improve with regular psychological treatment. In early 2007, back and neck pain continued to flare up.

99        Dr Cross reported that the Olympia Rehabilitation Hospital would not take on the plaintiff until she first addressed her chronic severe gambling and alcohol drinking.

100       In Dr Cross’ view, since October 2007, the plaintiff had continued to improve slowly. She still had significant decreased mood, energy and motivation, problems with sleep, memory and concentration, all consistent with ongoing depression but suicidal ideation. Her back pain had continued with some flare ups. The plaintiff’s symptoms of depression as well as her lower back pain had flared significantly since she became aware of her impending court case.

101       Dr Cross believed that the plaintiff had had extremely severe disabling depression which still affected her. She believed the plaintiff may have had a more rapid recovery had she been more willing and more able to participate in conventional treatment but she was still hopeful that the plaintiff would make a full recovery.

102       In examination in chief, Dr Cross confirmed the plaintiff could not resume her pre injury employment because of her low back condition.

103       Dr Cross was cross examined about the plaintiff’s pre accident spinal condition.

104       An entry of 25 June 1997 set out a discussion of stress at home. On 11 June 1997, more anxiety and panic symptoms were noted. On 21 May 1997, there was a note of right shoulder pain, partial relief with massage and panic attacks associated with pain.

105       On 14 November 2002, there was a note :

“Seen 11 November 2002 back pain.

Gambling is still a problem related to stress within marriage. Sandra is aware she has little control and why she is gambling. Discussed ++ including pokies as at risk. Has already cancelled cards to decrease damage.

Sore lower back. Work cleaning planes. Saw her on weekend. On examination painful at low thoracic/high lumbar area. Muscle spasm ++. Would prefer not to take on WorkCover: no formal injury. Prescribed heat massage, Panadol and x-ray to check no major damage.”

106       Dr Cross explained that the entry in relation to the back related to low thoracic/high lumbar area and it was significant enough to prescribe Panadol. The pain was in the middle of the back. There was muscle spasm ++. It seemed that the back pain had been present since 11 November 2002.

107       On 7 January 2003, it was noted that the plaintiff had come in basically for an extension of the certificate and was feeling unwell with chills and frontal burning, and headaches were worse with bending forward. The plaintiff was feeling tired and unmotivated and wondered if depression was coming back.

108       Dr Cross confirmed this entry and agreed that it indicated that the plaintiff was aware she had been suffering from depression.

109       Dr Cross was also cross examined about some attendances after the said date.

110       On 2 June 2004, Dr Cross recorded that the plaintiff had lower back pain which was partially relieved with Panadol. On examination, the plaintiff was tender to the lower back and physiotherapy was to happen the next day.

111       The next attendance was on 30 November 2004. It was noted on that date that the plaintiff was on normal duties and normal shifts and that she had been consistently rostered to work on the truck instead of being rotated through her normal duties. The plaintiff was required to climb four step rungs onto a truck, drive it next to the plane, then load it manually with blankets and linen and pick up used blankets, bagging them and carrying them back to the truck. The plaintiff experienced chronic low grade back pain similar to that felt after the accident.

112       In cross examination, Dr Cross said that she did not consider the plaintiff had a chronic back injury or pre existing back condition and that is why she had not mentioned it in her report. She confirmed that through the 1990s until the accident the plaintiff had been treated for anxiety attacks and prescribed medication for that condition and also for panic attacks.

113       Dr Cross mentioned that between January 1995 and mid to late January 1997, the War was taking place in Croatia. The plaintiff had a great deal of family there and her anxiety and panic attacks started as the War commenced.

114       Immediately prior to the accident, the plaintiff had mild anxiety. It was not severe clinical anxiety and there were no panic attacks. The plaintiff had issues and stressors that related to financial and marital problems. The plaintiff was otherwise fit and well. As of November 2002, the plaintiff had started gambling to help her cope with the stressors but otherwise the plaintiff was in control and she certainly was not drinking then.

115       Dr Cross then agreed that prior to the accident the plaintiff was not in control of her gambling but she was in control of other aspects of her life. She had two major problems, one being gambling and one being the stress at home. She would have had a decent discussion about gambling with the plaintiff in November 2002 and she would have gone through the options for treatment.

116       Dr Cross confirmed the plaintiff had attended on a number of occasions from 1997 to the said date in relation to shoulder and neck problems.

117       It was Dr Cross’s understanding that there was not a single incident at work in November 2004 and that rather than having rotating duties as was supposed to happen, the plaintiff had consistently worked on a truck which was very heavy work.

118       The last visit before that time was on 2 June 2004 when the plaintiff attended with a complaint of low back pain. Between then and November, the plaintiff did not require any treatment nor did she take any medication that Dr Cross was aware of. She thought that in that period the plaintiff had good function but she could not comment on the plaintiff’s pain as she had not seen her.

119       It was Dr Cross’s understanding that the plaintiff presently has difficulty driving and shopping and that her back pain fluctuates. She understood that the plaintiff has not been able to drive on many days because her pain had flared. She did not believe the plaintiff drove on most days. If that was not the case, that was a different story to what she had been told.

120       Dr Cross agreed the plaintiff had been reluctant to engage in a number of courses and programs. She, however, confirmed Olympia Rehabilitation Hospital was not prepared to treat the plaintiff until she had first addressed gambling and alcohol, and that was still the case.

121       Dr Cross understood the plaintiff spent her days drinking very heavily. She continued to gamble and her back pain still flared up quite a bit, so sometimes the plaintiff just spent a few days literally on the couch.

122       If the drinking and gambling were removed, Dr Cross thought the plaintiff would still have significant pain issues impacting on her employability. She considered the plaintiff continued to have very significant depression and anxiety.

123       Dr Cross confirmed that she had referred the plaintiff to a psychiatrist whom the plaintiff had seen only a few times and then refused to continue to see. However, she continues to see a psychologist.

124       Dr Cross last recorded the plaintiff’s range of movement on 18 June 2009 and before that she did so on 17 February 2009. The focus of her more recent examinations has been on addressing psychiatric issues rather than pain.

125       Dr Cross did not think it would be possible the plaintiff could do telemarketing at home. She did not think the plaintiff could consistently perform work duties. In her view, there would be the odd day when the plaintiff was able to work, but her depression and drinking fluctuated, as did her pain.

126       Dr Cross would be surprised if it was the position that the plaintiff drove herself to the poker machines and shops most days as she thought the plaintiff was housebound on many days. If she was able to drive most days, Dr Cross thought the plaintiff would still be incapable of work.

127       Dr Cross agreed that she did not know the plaintiff’s sitting tolerance and agreed that that would be a relevant consideration in relation to employment capacity. She had been told by the plaintiff that her standing tolerance was very limited and it depended on the amount of back pain. Some days it could be less than five minutes, other days up to an hour.

128       In re-examination, Dr Cross agreed that if the plaintiff could drive whenever her back allowed her and she could sit for ten to fifteen minutes, these factors would impact on the plaintiff’s ability to work.

129       Dr Cross confirmed the plaintiff tried very hard to get back to work after the initial injury and confirmed that there was no reference in her notes to anxiety, depression or psychiatric symptoms between June 1997 and November 2002. She thought it was very likely that the plaintiff’s current back pain was related to the accident.

130       Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff at the request of Qantas on 1 April 2003. The plaintiff indicated pain in the lower lumbar spine, spreading into each buttock.

131       Mr Battlay thought the plaintiff had evidence of an ongoing soft tissue strain and no evidence of a disc prolapse causing sciatic nerve root irritation.

132       He supported the return to work plan proposed at that time and duties involving a limit on manual handling to fifteen kilograms, restriction of sustained or repeated bending below waist height, and five minute rest breaks for two hours.

133       Mr Battlay reviewed the plaintiff on 5 August 2003, at which time her condition had worsened and she had left work altogether. At that stage Mr Battlay thought the plaintiff had a substantially resolved lumbar soft tissue strain and that she was minimally incapacitated.

134       The plaintiff was reviewed on 22 September 2003, at which time she said she was improving each day, however she was only working for four hours a day as an extra on the crew.

135       Mr Battlay noted the plaintiff still had some symptoms but there were no objective neurological or physical findings, and in his opinion she had recovered from the work related injury.

136       The plaintiff was further reviewed on 17 December 2004, at which time she had returned to work, working normally on a full time basis.

137       Mr Battlay noted on examination that the plaintiff presented in a genuine light. She was observed to have some reflex muscle spasm with back movement and there was tenderness over the lower lumbar spine. The plaintiff attributed the worsening of her symptoms to the activity of climbing into the truck that she drove.

138       At that examination, Mr Battlay thought the plaintiff had a partial incapacity from a physical point of view and he thought her rehabilitation plan would be appropriate.

139       Rather than suffering from a new injury climbing into the truck, Mr Battlay thought the plaintiff in fact had continuation of her previous injury following the accident.

140       He diagnosed an L4-5 disc derangement to which employment was a significant contributing factor in terms of the continuation of the plaintiff’s accident injury. He noted the presence of structural damage at L4-5 was an impediment to recovery and he could not predict the likely duration of the plaintiff’s symptoms. He thought at that stage her situation had not stabilised.

141       The plaintiff was further reviewed on 20 June 2005, at which time she had commenced a spinal rehabilitation program, as a result of which she had reported no overall improvement. Mr Battlay confirmed his view that the plaintiff had an L4-5 disc derangement and was currently partially disabled.

142       On 2 July 2003, Dr O’Gorman saw the plaintiff at the Airport Medical Centre for the purposes of issuing a WorkCover certificate and commenting on the return to work offer.

143       At that stage he recommended that the plaintiff would be fit for normal duties by approximately six weeks from the commencement of the program and he did not see any long term impediments to recovery and return to work.

144       The plaintiff was referred to John O’Brien, orthopaedic surgeon, by Dr Cross in July 2003. At that time she complained of constant back and buttock pain.

145       Mr O’Brien noted, despite severe symptoms, the plaintiff’s range of cervical and lumbar movement was quite good and there were definitely no signs to suggest any neurological involvement.

146       Mr O’Brien suggested x-rays. He thought that the plaintiff’s condition was basically a soft tissue injury which certainly appeared to be becoming a true chronic problem with its poor response so far, particularly to physical treatment.

147       Mr O’Brien agreed with Dr Cross that a pain management program was a perfect direction and noted that the plaintiff’s problem was undoubtedly difficult to treat.

148       Ms Libby Nottle, psychologist, first saw the plaintiff in April 2005 on referral from Dr Cross. Between April 2005 and May 2009, she saw the plaintiff over sixty times for counselling.

149       She noted the plaintiff had reported feeling suicidal on a number of occasions, the most recent being February 2009. The plaintiff continued to use alcohol in order to block out her pain. The plaintiff reported fluctuations in her weight and she continued to gamble as a way to escape from her depression, continued back pain and distress.

150       In Ms Nottle’s view, the plaintiff continues to experience constant pain and reports symptoms sufficient for a diagnosis of major depressive episode. The plaintiff is limited in her physical activities and she is self medicated with alcohol and has gambled in an effort to forget her circumstances. Further, her marriage has been affected to the extent that she and husband now live separate lives.

151       The plaintiff presented at St Vincent’s Hospital Emergency Department by ambulance on 15 July 2005 complaining of significant left mid foot pain associated with swelling, nausea and vomiting. An initial presumptive diagnosis of probable infection with treatment comprising oral antibiotics and analgesia was made.

152       Mr Hahne, physiotherapist at the Spinal Management Clinic of Victoria, first saw the plaintiff on referral from Dr Cross in March 2005.

153       The plaintiff told him about the incident and a resumption of full time duties by September 2003 with ongoing recurrences of pain requiring some additional days off work.

154       The plaintiff told him how she then experienced a sudden increase in her back pain, as well as referred pain into both legs at work on 17 December 2004 whilst she was lifting herself up into a truck.

155       Mr Hahne noted the plaintiff presented with signs and symptoms consistent with the discogenic injury of the lower lumbar spine. He thought it reasonable to assume her work was a significant contributing factor to the development of her injury, particularly the events noted in the incident and in late 2004.

156       He noted the plaintiff clearly had ongoing fluctuations in her pain in 2005. He has not seen the plaintiff since that time.

157       Dr Al Humrany, consultant psychiatrist, saw the plaintiff in August 2005 on referral from Dr Cross. At that time the plaintiff was suffering from a three year history of work related injuries with secondary mood problems. She presented with a severe depressive episode characterised by low mood, frustration, despair and anger and she was edgy with poor control on her behaviour. Her behaviour was very impulsive, characterised by overspending and gambling which were contributing to her severe depression and anxiety, and for the previous three years she had had intrusive suicidal thoughts.

158       Dr Al Humrany discussed with the plaintiff the possibility of admission to hospital but she completely refused the idea. It was his impression the plaintiff was suffering from a severe depressive episode with a secondary anxiety problem and he commenced her on Efexor.

159       Mr Darrell Nye, neurosurgeon, examined the plaintiff on behalf of Sparke Helmore, solicitors, on 15 May 2006. The plaintiff told him of the incident and an exacerbation of her pain in November 2004.

160       At the time of examination, the plaintiff’s lower back pain was present daily with some bilateral radiation to the hips and both legs, the description of which he noted was not typical of sciatica.

161       On examination, there was normal spinal posture with retained lumbar lordosis. There was no spasm of paravertebral musculature in the lumbar region. There was a modest restriction of movement with flexion and extension, and rotation was normal. The neurological examination revealed retained brisk symmetrical lower limb reflexes. There was no impairment of pinprick appreciation affecting either lower limb.

162       Mr Nye saw the MRI scan of 8 June 2005 which revealed some loss of signal at L4-5 with associated modic change in the L4 vertebra and a broad disc bulge with a very small associated annular tear.

163       In Mr Nye’s view, in all probability an injury was sustained in that region where there was now demonstrated degeneration affecting that disc. He noted the plaintiff’s condition had been complicated by a psychological reaction.

164       Mr Nye diagnosed pathology at L4-5 and a secondary psychological condition. He thought the symptoms of physical restrictions reported at the time of examination were consistent with that diagnosis. He considered the plaintiff’s prognosis was consistent with the identified pathology and that psychological issues had complicated the situation.

165       Mr Nye thought the effects of the aggravation had not ceased and that there would be a permanent consequence of that injury. He did not identify voluntary exaggeration of symptoms and restrictions, nor involuntary exaggeration.

166       He considered the plaintiff not currently capable of fulltime employment, with such limitations having been existent since November 2004.

167       Mr Nye thought the plaintiff was partially incapacitated and that alternative duties could be undertaken but any work situation would have to exclude the need for repeated bending or twisting of the spine, prolonged unrelieved periods of either standing or sitting and a lifting limit of five kilograms would be appropriate.

168       He concluded in general the plaintiff’s prognosis was reasonable. She would at times in the future experience exacerbations of pain which in the long term should show a natural tendency towards reduction, severity and frequency.

169       In a subsequent report, Mr Nye confirmed that the accident and the subsequent work activity in November 2004 contributed to the identified L4-5 disc condition for which there was radiological evidence. He considered that the accident and the exacerbation had equally contributed to the plaintiff’s condition.

170       When Mr Nye re examined the plaintiff on 25 January 2007, she reported no change in her condition other than at times it felt worse.

171       Following re examination, Mr Nye came to the view, as previously, that the plaintiff had symptomatic single level lumbar disc degenerative disease.

172       The plaintiff was referred to Dr Lim by Dr Cross in June 2007 complaining of bilateral leg pain and increasingly severe low back pain. The plaintiff told him of the incident and the recurrence in November 2004.

173       On examination, he noted the plaintiff tried very hard to give him an opinion as to why she was suffering from persistent pain and she also indicated she had put on a lot of weight.

174       He noted that the plaintiff had an extremely poor posture with anteriorly tilted pelvis and an increase in lumbar lordosis causing a persistent hyperextension movement resulting in a mechanical back pain component to her pain.

175       Dr Lim summarised the plaintiff’s perpetuating components as mechanical back pain, muscular overuse pain and the development of central sensitisation. He thought she would definitely benefit from attending the Olympia Pain Management Program. He thought the plaintiff first needed to see a pain psychiatrist, Dr Whitehouse, to assess her psychological state because unless that was stable she would not be able to take on the program successfully. In the meantime he commenced her on a trial of Lyrica aimed at reducing pain amplification due to sensitisation.

176       Dr Whitehouse assessed the plaintiff on 29 June 2007. She took a history of a period of depression with panic attacks years ago. The plaintiff reported guilt about her current situation, letting her family down and she also presented with alcohol dependence, pathological gambling and chronic pain with a likely depressive illness which, in her view, may be contributed to by alcohol abuse.

177       Dr Whitehouse commented that she would be happy to review the plaintiff again once she had achieved a period of sobriety of several months.

178       Dr Michael Epstein, psychiatrist, examined the plaintiff on 13 November 2008. The plaintiff told him of the accident and her continuing problems since then. She claimed she was also harassed during the course of her employment.

179       Dr Epstein noted the accident in 1985 and also the development of panic attacks after the plaintiff’s involvement in the Croatian War in the early 1990s. He noted the plaintiff saw Dr Mestrovic, a psychiatrist, on five or six occasions over a few months for treatment.

180       The plaintiff told Dr Epstein her problems with panic attacks ceased in 1997 and she also told him of a second motor vehicle accident in 1999.

181       The plaintiff told him that she occasionally gambled on poker machines but she thought her gambling was well controlled prior to the accident.

182       The plaintiff told Dr Epstein that she returned to work in October 2003 working fulltime on normal duties and had difficulty coping. She told him of the incident with the truck on 17 December 2004 and the fact that she returned to light clerical duties in early 2005.

183       The plaintiff told Dr Epstein that in July 2005 she requested permission to travel to Croatia to see a family member who was unwell but this request was denied because she continued on WorkCover. She thought at this time she had been betrayed by the defendant and thought she was being unfairly treated.

184       The plaintiff told Dr Epstein that in March 2006 she received a letter indicating her employment had been terminated. She told him of subsequent holidays in Croatia and that she had moved to rented premises in September 2008.

185       The plaintiff told Dr Epstein her weight had increased by at least twenty kilograms, she had difficulties sleeping and did very little around the house. She complained of constant lower back pain into both buttocks and down both legs.

186       The plaintiff told Dr Epstein that she had attempted suicide on two occasions in 2005 and was referred to a community assessment and treatment team. She told him she had ceased using cannabis and had cut back on her alcohol consumption. She played poker machines whenever she had the money.

187       On examination, the plaintiff appeared well orientated to time, place and person. Her affect was restricted and she appeared depressed and anxious. In Dr Epstein’s view, the plaintiff appeared to have no problems with perception and her intellectual functioning appeared normal. Her speech fluctuated according to her level of distress and she had some problems with memory and concentration. There was no evidence of thought disorder, delusions or hallucinations.

188       Dr Epstein considered as a result of chronic pain, discomfort and disability and her perception that she was being treated unfairly by the defendant, the plaintiff had developed a chronic Adjustment Disorder with depressed mood and anxiety which was materially contributed to by the accident. In his view, given the passage of time since her symptoms had been present, the plaintiff’s condition was permanent.

189       Dr Epstein considered the plaintiff’s psychiatric state of itself was a major factor preventing her from returning to work in any capacity. He noted she was unmotivated, exhausted, irritable, isolated and coped poorly with pressure. He thought she could not go back to her pre injury employment because of her psychiatric state and her physical condition. He noted, given the nature of the plaintiff’s work in the past, which had been physical work, it was difficult to envisage her being able to return to work in any capacity.

190       Dr John King, psychiatrist, examined the plaintiff on behalf of the defendant in October 2008. The plaintiff told him her current psychiatric state varied very much, and often she was preoccupied with the effect her depression and injuries had on her life. She told him about her attendances with Dr Mestrovic during the 1990s.

191       On examination, the plaintiff’s affect was of sadness and anger, though on occasions when talking about the consequences of her accident she became very tearful and quite distressed. Her affect was reactive and congruous.

192       Dr King found no formal thought disorder but noted the plaintiff was quite a circumstantial historian. He believed the accident had a very severe and very negative impact on her life. The plaintiff did not suffer from hallucinations or delusions and there were no current suicidal ideas and she was cognitively clear. She had partial insight into her difficulties.

193       Dr King considered the plaintiff suffered from an Adjustment Disorder with anger and depressed mood and associated with that an alcohol abuse disorder. He did not believe she suffered from a depressive illness.

194       He considered that those psychiatric symptoms had been partly caused by the trauma of the accident but were more substantially related to the physical injuries sustained in the accident and other family issues and stresses, including estrangement from her husband who remained in Croatia.

195       Dr King considered the plaintiff’s psychiatric illness was consistent with the accident circumstances and had not been influenced by a pre existing psychiatric illness.

196       He noted that the plaintiff did not readily submit to taking antidepressant medication. He did not consider the plaintiff’s psychiatric difficulties interfered with her capacity to work and thought that regular work would assist in her psychiatric recovery.

197       Dr King believed the prognosis was quite poor given the time since the accident over which her psychiatric state had deteriorated, and treatment had given her little assistance. Dr King thought it reasonable to pay for psychological treatment on a decreasing frequency, ceasing after a further year.

198       Mr Michael Fogarty, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 11 November 2008.

199       The plaintiff told him about her difficulties coping, especially when she was retrenched by Qantas. She had put on a considerable amount of weight since the accident. Her marital situation had deteriorated and she had resorted to excessive alcohol and compulsive gambling.

200       The plaintiff told Mr Fogarty her lower back continued to give her persistent pain, extending into both hips and buttocks, and that she had frequent spasms in her feet and tingling in both of them, though more in the leg.

201       On examination, there was limitation of lumbar movement. There was no neurological deficit in either lower limb and all reflexes were present, brisk and equal. Mr Fogarty noted that an earlier x-ray of the neck and CT scan of the head were reported as normal and that the 2004 CT scan of the lumbar spine demonstrated bulging of the L4-5 disc with central protrusion indenting the anterior aspect of the theca but not causing obvious pressure on nerve roots.

202       In Mr Fogarty’s view, there appeared to have been an injury to the lumbar spine and some degeneration, with bulging of the L4-5 disc being demonstrated. He thought it was likely that this was directly related to the accident. He also noted that depression, stress and anxiety appeared to be a major problem for the plaintiff.

203       In Mr Fogarty’s view, the prognosis of the bulging of the L4-5 disc was fair to good but he noted that unfortunately the prognosis in the overall sense was poor because of the significant stress reaction and the plaintiff’s method of coping with it.

204       In his view, the plaintiff’s injuries did interfere with her ability to work but only for a short period in the first instance. He would have expected the plaintiff to have been incapacitated for about a month or two from a physical point of view.

205       Mr Fogarty noted the plaintiff’s injuries interfered significantly with domestic and leisure activity but largely as a result of her method of coping with her back injury leading to excessive stress, depression and anxiety, unfortunately exacerbated by inappropriate habits. He considered, given the length of time since the accident, the effect of all this was to make it most unlikely the plaintiff would ever recover enough to be gainfully employed in the future.

206       Mr Russell Miller examined the plaintiff on 14 January 2009.

207       The plaintiff told him about the accident, after which she had three weeks off work and felt sore all over. She told him ultimately she was able to return to normal duties but her back symptoms however continued to deteriorate. She ultimately was placed on restricted duties, including office based duties, and her work was terminated in approximately March 2006, at which time she was performing these restricted duties.

208       On examination, the plaintiff had an intermittent neck ache and discomfort. Her major problem was her lower back area where she had pain and discomfort radiating into both legs. She also suffered from problems with anxiety and depression which he thought would require separate assessment.

209       The plaintiff told Mr Miller she had been involved in a car accident in approximately 1985 and had had minor neck symptoms but they had resolved. She told him of her involvement in another car accident in 1999 where she had similar problems. She told him that there was no prior back injury and no prior back symptoms.

210       On examination of the plaintiff’s lumbar spine there was diffuse lower lumbar tenderness and lower muscle spasm. There was reduced range of lumbar movement and neurological examination was unremarkable with power, sensation and reflexes being preserved.

211       Mr Miller had no radiology available to him. It was his view that it was likely the plaintiff had suffered a musculo ligamentous strain to the lumbar spine, and another disc injury in the lumbar spine. On the basis of the plaintiff’s described symptoms and her lack of improvement, he believed her long term prognosis was fair to poor.

212       Mr Miller considered the plaintiff’s current clinical status in relation to her cervical and lumbar spine reflected the effects of the accident. He noted the 1985 and 1999 injuries but he did not believe they were relevant to the plaintiff’s current assessment.

213       Mr Miller considered the plaintiff had had appropriate conservative treatment, albeit with a poor response. He believed it unlikely she would be helped by surgical intervention although that remained a possibility.

214       In Mr Miller’s view, the plaintiff was not fit for her pre injury work and indeed multiple attempts to return to work had failed. She was not fit for work that involved repetitive bending or lifting of weights of more than five kilograms and she would have a requirement to shift her posture on a regular basis. He considered she was permanently suitable for only sedentary work.

215       Mr Miller noted the plaintiff’s difficulties with driving, her inability to walk long distances and her difficulty with domestic activities and gardening.

216       Mr Miller provided an addendum to his report, having been provided with the various investigations.

217       In relation to the lumbar spine, he thought the plaintiff had suffered a disc injury at L4-5 and also a musculo-ligamentous strain. He thought there was no nerve root compromise. He noted the plaintiff had significant ongoing symptoms and had a poor response to conservative management. He confirmed his view as to her long term prognosis.

218       Mr Miller also noted the plaintiff suffered an adverse mental state reaction and had problems of anxiety and depression.

219       He believed the plaintiff had suffered a disc injury at L4-5 and her pain on the balance of probabilities was discogenic in origin but he acknowledged the difficulties in making such a determination.

220       Dr Nicholas Ingram, psychiatrist, examined the plaintiff on behalf of the defendant on 3 September 2009.

221       On examination, the plaintiff’s affect was depressed and she was tearful on occasions and there was a decrease in reactivity, though she engaged well. There was a preoccupation with her pain and depressive themes, though there was no formal thought disorder or perceptual abnormality and her memory and concentration and appearance seemed normal.

222       Dr Ingram felt the plaintiff was suffering from a Chronic Adjustment Disorder with depressed mood. In his view, this was mainly a secondary consequence of the accident and her subsequent chronic pain, though it was also contributed to by her perceived victimisation at work and her feelings about this, and also because of the breakdown of her marriage. However, he noted both of those seemed to have been in themselves contributed to by her chronic back pain so he thought it reasonable to say that most of her psychiatric symptoms were a secondary consequence of her original accident.

223       He also noted the plaintiff had developed alcohol dependence and a gambling addiction.

224       Dr Ingram considered the plaintiff was significantly depressed and that her prognosis was poor.

225       He considered the plaintiff’s depression was severe enough that in its own right it would prevent her from working though he thought it was largely her pain that had prevented her working up until now. He thought her depression also significantly affected her ability to involve herself in domestic and leisure activities and would have done so for the last few years.

Investigations

226       A lumbosacral spine x-ray undertaken on 15 March 2003 showed mild end plate spondylitic lipping seen throughout the lumbar spine. Intervertebral disc space height was well maintained and the facet joints and sacroiliac joints were normal in appearance.

227       A CT scan of the cervical spine and head was carried out on 7 March 2003. The CT scan of the cervical spine was normal.

228       On 30 November 2004, there was an x-ray and CT scan of the lumbosacral spine. It was concluded there was slight scoliosis with convexity to the left probably due to muscular spasm. There was a broad based disc bulge at L4- 5 indenting the anterior aspect of the theca and there was no mechanical nerve root compromise.

229       There was a further MRI scan of the lumbar spine on 9 June 2005. It was concluded there was a mild diffuse annular disc bulge and annular fissure at L4-5 producing slight indentation of the theca but not displacing the nerve root.

230       There was an x-ray of the cervical and lumbar spine on 17 April 2007. The examination of the cervical spine was normal, and in relation to the lumbar spine it was concluded there was early generalised lumbar spondylosis.

231       There was a further MRI scan of the lumbar spine of 3 July 2007. There was a mild broad based disc bulge at L4-5 and otherwise the finding was normal. There was no exiting nerve root impingement on any level at either side.

232       A CT scan of the lumbosacral spine taken on 2 March 2009 showed a small broad based posterior disc protrusion present at L4-5. There was no spinal canal stenosis or impingement on the exiting nerve roots.

The Defendant’s Medical Evidence

233       The plaintiff was examined by Dr Baker on 1 July 1996 in relation to an injury suffered on 2 May 1996 whilst working for the Moreland City Council as a home care worker.

234       The plaintiff complained of pain in both sides of her neck radiating to her head and both upper arms. She had returned to work on 27 May 1996.

235       On examination, the plaintiff had pain in the lower part of her neck and over the right trapezium region into her right shoulder. She also had pain in her thoracic spine.

236       Dr Baker noted that the plaintiff found hand washing of clothes difficult. She could walk but she had a slight limp of her right leg. She had pain in her right groin and she had been told she suffered with spasms of her back. She did not have any problems standing but could not stand for a prolonged period, nor sit for a prolonged period. It was noted she was taking Aurorix. She was able to do shopping, cooking and cleaning, but the children helped a lot around the house. She did not do any gardening although she loved to garden.

237       On examination, that the plaintiff had a full range of movement of the neck and shoulder. There was no objective evidence of a continuing physical lesion. He thought the plaintiff was capable of undertaking her pre-injury duties full time.

238       Mr Michael Johnson, orthopaedic surgeon, saw the plaintiff on referral from Dr Wu in June 2005.

239 The plaintiff told him of the accident but not of any incident in November/December 2004. She complained to him of continuous lower back pain of variable intensity that radiated into her leg and was more severe on the left than the right.

240       On examination, he noted that the plaintiff localised her pain to the base of the spine. The range of thoraco lumbar movement was seventy per cent of normal and straight leg raising was full. There was no neurological abnormality in the lower limbs. He noted the recent CT scan showed evidence of a minor L4-5 disc prolapse without nerve root compression.

241       Mr Johnson advised the plaintiff that he was unsure of the cause of her pain. He explained that there was a minor disc bulge on the CT scan, but the changes were not diagnostic in his view and they were consistent with the plaintiff’s age.

242       However, he thought, as the plaintiff had a persistent problem, it would be reasonable to further investigate it with some x-rays and an MRI scan.

243       Mr Johnson further reported on 30 June following the MRI scan which demonstrated disc degeneration of the lower lumbar spine, worst at L4-5. He noted there was no major disc prolapse or nerve root compression.

244       He explained to the plaintiff that her pain may be related to the L4-5 disc abnormality and explained to her that that could be part of normal ageing.

245       In Mr Johnson’s view, there was therefore a doubt about the anatomical diagnosis of the plaintiff’s symptoms and he would not recommend any surgical intervention.

246       Dr Leon Fail, psychiatrist, examined the plaintiff on behalf of Qantas on 3 August 2005.

247       The plaintiff told him of the accident and her problems on return to work with her heavy duties loading and unloading trucks and Qantas’s refusal to rotate her duties. The plaintiff told him about re injuring her back in 2004 on the truck work.

248       The plaintiff told him that her stress had been that her pay got mixed up and she had not been paid properly. She was also unable to gain staff travel. Further, on 9 June 2005, she had received a letter saying she may be terminated on medical grounds as she was unable to return to her previous duties. The plaintiff went off on stress leave on 16 June 2005.

249       The plaintiff told Dr Fail she had been seeing a psychologist since April 2005, and was seeing her at that time twice at week. She said she had to see the psychologist so frequently because of the pain and frustration of her life, she could not sleep, her marriage was failing and she could not do all the housework.

250       She told Dr Fail of a past history of psychiatric treatment in 1992 when she suffered from anxiety attacks following being in Croatia during the War.

251       On examination, Dr Fail noted that the plaintiff became distressed and weepy. She was a difficult historian and she had difficulty concentrating. Dr Fail thought there was no evidence of any psychotic features.

252       In his view, the plaintiff was suffering from a chronic adjustment reaction which arose partly as a consequence of and secondary to a physical injury.

253       Dr Fail noted that the plaintiff appeared also to be reacting directly to action taken by the defendant in her perception of discrimination, in that other employees had been provided with benefits she had been denied, such as training whilst on light duties, and staff travel. She also had anxiety at having her employment terminated on medical grounds.

254       The plaintiff was examined by Dr Diane Neill, psychiatrist, initially on 6 June 2006, and more recently on 8 March 2007.

255       The plaintiff told Dr Neill that her gambling had increased after the accident, that by 2004 she was drinking hazardously and by 2005 she was using marijuana.

256       Dr Neill stated that with the benefit of a re interview and the plaintiff’s general practitioner’s notes, the plaintiff’s anxiety, which the plaintiff continued to deny experiencing in any case in May to August 2003, was entirely related to family matters, with no linking symptoms to the accident.

257       In her view, the plaintiff’s state of depression in March to April 2005 substantially related to her marital breakdown which happened then, and to major financial problems. By that time, she considered the plaintiff certainly had a tangle of problems in the workplace which had evolved in the wake of a physical injury and unrelated problems which had left her angry, bitter and perceiving herself to be out of favour.

258       In Dr Neill’s view, there appeared to be a strong psychosomatic component to the plaintiff’s pain. She noted that the plaintiff had never adhered to prescribed antidepressant medication for sufficient duration to be able to be considered a course of treatment.

259       Dr Neill diagnosed an Adjustment Disorder with mixed disturbance of mood and behaviour. In her view, it was very likely the plaintiff had an alcohol abuse disorder but collateral history and other information needed to be obtained. In her view, there were no current or ever symptoms of a Post Traumatic Stress type condition or other anxiety condition related to the accident.

260       Dr Neill considered the plaintiff’s psychiatric condition was of mild to moderate severity.

261       She noted that on the earlier examination the plaintiff also attributed her condition in part to marital breakdown, the deaths of close family members and social factors, but now she attributed her psychological condition entirely to the work injury.

262       In Dr Neill’s view, that represented a substantial displacement by the plaintiff, possibly supported by her health workers, for which there was much evidence to the contrary.

263       Dr Neill thought the plaintiff did not need antidepressant or other psychotropic medication and thought she had little to gain from generic psychological counselling.

264       Dr Stephen Stern, psychiatrist, examined the plaintiff on 1 July 2009.

265       The plaintiff told him of the accident and the incident in November 2004. She told him that she continued to feel depressed and cried easily. Her sleep was disturbed and she was woken by pain. She had lost energy.

266       The plaintiff explained that on her return to work she was constantly questioned and she felt degraded. In June 2005, she applied for another position but the WorkCover officer said it was too late, but another worker got the job. The HR department refused to take a written complaint from her in relation to this issue.

267       There was a meeting the next day and the plaintiff was told that management would look into the issues. The plaintiff got upset and she attended the airport medical officer, Dr O’Gorman, who put her off work.

268       The plaintiff told Dr Stern she returned to work after a few weeks and did various courses and helped in the office. She was not given her staff travel allowance, and in April 2006 her employment was terminated.

269       The plaintiff told Dr Stern that marital problems began after the accident and that she and her husband separated in 2004. She also told him that she had been gambling on poker machines for about six years.

270       On examination, Dr Stern noted that the plaintiff’s speech had normal volume, form and flow, and the content was depressive and anxious. She had some difficulty with her memory for details and she was preoccupied with feelings of victimisation at work.

271       Dr Stern noted that the plaintiff’s affect was depressed and anxious and she was not hopeful of the future. There was no evidence of thought disorder, delusions or hallucination and there was no obsessive compulsive disorder.

272       In Dr Stern’s view, the plaintiff was suffering from an Adjustment Disorder with mixed anxiety and depressed mood, alcohol dependence and gambling disorder.

273       He considered this was related to the accident, the aggravation of the plaintiff’s low back pain in 2004 and feelings of victimisation at work from 2003 to 2006 when her employment was terminated.

274       In his view, from a psychiatric aspect alone, the plaintiff was fit for full time work, including her pre injury duties, and he thought her social and leisure activities had been reduced.

275       He considered that the plaintiff’s psychiatric state had stabilised and there was no evidence of any voluntary exaggeration of symptoms.

276       He apportioned the plaintiff’s psychiatric reaction to work related factors as thirty per cent due to the accident, twenty per cent due to work aggravation of the low back in November 2004 and fifty per cent due to feelings of victimisation.

277       Mr Schutz, consultant surgeon, examined the plaintiff on 9 June 2009. She told him of the accident and the aggravation in November 2004.

278       She told him that in 2005 everything collapsed. She was having marital problems, she gambled, she was in debt and, because of her marital problems and the dissolution of her marriage, the house was likely to be sold, and she was also having difficulty with her children.

279       The plaintiff told Mr Schutz she could walk for ten to thirty minutes but it caused increasing low back pain. She could hurry across the road but could not run. She could sit and stand for thirty minutes, but both caused increasing low back pain. She said she could partly bend and she could drive and shop sometimes. The plaintiff rated her back pain at nine out of ten.

280       On examination, the plaintiff indicated discomfort at the lower lumbar region, indicating the L4-5 and L5-S1 levels, but Mr Schutz noted there was no focal point or spinal level of discomfort on palpation.

281       There was restriction of all movements of the thoraco lumbar spine. There were no symptoms or signs to suggest nerve root irritation. Mr Schutz noted that, when sitting on the couch with her legs extended, the plaintiff sat with her lumbar spine vertical. Straight leg raising indicated twenty degrees from the supine position but seated straight leg raising was normal.

282       In Mr Schutz’s view, investigation showed degeneration and a minor transient aggravation only. X-rays and a scan in 2003 and 2004 showed degeneration and an unremarkable disc bulge at L4-5 only.

283       He considered the likely effect of the accident was a trivial blow to the forehead with transient symptoms, minor soft tissue strains to the cervical and the lumbar regions but no evidence of any ongoing related condition.

284       Recovery, in his view, was likely to have occurred from all related symptoms within six to twelve weeks after the accident.

285       Mr Schutz considered there was no evidence that the plaintiff’s currently reported symptoms and restrictions were due to the accident and that any possible soft tissue strains would have recovered some time ago. Mr Schutz also thought the aggravation in late 2004 was temporary and mild.

286       In Mr Schutz’s view, it would be reasonable for the plaintiff to recommence employment within suitable restrictions of lifting less than five to ten kilograms and avoiding bending and twisting on, say, four hours by five days, increasing by one hour per day at one weekly intervals to reach full time work in four to five weeks.

287       Mr Fogarty further reported in September 2009, having received radiological investigations. Those investigations in no way caused him to alter his view.

288 He noted that there were no radiological differences between the investigations undertaken prior to November 2004 and thereafter.

289       Further, Mr Fogarty noted that in the July 2007 MRI scan, there was evidence of early disc degeneration with desiccation at L4-5 with a small central protrusion indenting the anterior aspect of the theca but not causing any obvious pressure on the nerve roots. He noted that that was consistent with the CT scans done both in November 2004 and subsequently and, again, such a finding did not alter his view.

Claim Documentation

290       The plaintiff submitted a claim dated 5 August 1988 setting out that her back, neck and arm were injured operating can equipment on an assembly line while working for the National Can Company.

291       A number of WorkCare medical certificates relating to this claim in 1988 were also tendered .

292       The plaintiff submitted a Claim for Compensation dated 28 May 1996 whilst working for Moreland City Council as a home care worker. She set out that she suffered pain in her neck, shoulder, back and arms and that she had had a previous pain in that area in 1988 when she had an injury to her neck and back.

293       A WorkCover Certificate of Capacity dated 9 May 1996 set out the plaintiff was unfit for work because of pain in the neck and upper back.

Vocational Evidence

294       A vocational assessment report dated 18 June 2006 was provided by Leonie Schneider of Australian Vocational Link.

295       Ms Schneider concluded that there appeared to be a great deal of exaggeration in the history the plaintiff had given and she was not convinced the plaintiff was especially genuine in her reporting.

296       Ms Schneider thought the plaintiff was more capable and fitter than she wanted to portray and that her medication and treatment regime was not suggestive of someone who was physically or psychologically impaired.

297       Ms Schneider concluded that there were no significant barriers to the plaintiff successfully returning to work. She considered the plaintiff should not be hindered by her pain level, sleep pattern or by medication. It was noted that the plaintiff was a very outgoing, Australian educated lady of Yugoslav background with bilingual skills.

298       It was concluded the plaintiff could work if she wanted to and that jobs such as clerical assistant, call centre operator, florist shop assistant, self service cashier, light assembly worker, laundrette assistant and service station console operator were appropriate.

Wage Records

299       The plaintiff’s wage records on her return to fulltime duties were tendered, without any explanation or analysis, to establish that the plaintiff had worked full time and also overtime on her return to work until November 2004.

Overview

300       I find that the plaintiff suffered injury to her lumbar spine in the accident.

301       Save for Mr Schutz, it is generally accepted by medical practitioners in this case that the plaintiff suffers from a disc lesion or disc condition at L4-5 confirmed on MRI in June 2005 and CT scan in March 2009.

302       The issue is whether the impairment to the plaintiff’s lumbar spine is serious and long term.

303       In this case, where there is a pre existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the accident was serious and long term.

304       In Petkovski v Galletti (1994) 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused . . . .”

305       The plaintiff therefore, to reach the threshold of serious injury, is required to establish the aggravation is long term at the time of the hearing in its effects on the lower spine and the effects of the aggravation when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable.”

306       The statutory test requires a judgment based on an evaluation of the evidence. The relevant evaluation is of impairment consequences not injury.

307       The term “serious” requires the impairment and its consequences to be reviewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441; see in particular Chernov JA at para 29.

308       There is no evidence that the plaintiff had ongoing problems as a result of her injuries suffered whilst working at National Cans in 1988.

309       Whilst the plaintiff suffered injury to her back in 1996 working for Moreland Council, and she was examined by Dr Baker for medico legal purposes in relation thereto, I note from the tendered material that, apart from a claim form being submitted and this examination taking place, no weekly payments or medical expenses were paid in relation to this claim which was made some seven years before the accident.

310       Although the plaintiff may have had some problems with her back and restriction of activities at that time, as recorded by Dr Baker, from that time to the said date she did not have ongoing problems in relation to her lower back save for mild back pain she and her fellow workers had doing their duties and she did not require treatment.

311       Further, Dr Cross confirmed that the plaintiff’s complaints on examination in November 2002 related to her neck and upper back, not her lower back, and Dr Cross did not believe there was a problem with the plaintiff’s lumbar spine before the accident.

312       I accept that at the time of the accident, the plaintiff was working full time in a relatively heavy job. She was able to do her domestic and gardening tasks without any restriction. She was not suffering from any particular problem with her lower back.

313       Having initially had three weeks off work after the accident and then ultimately returning to full time duties in November 2003, I accept that the plaintiff continued to experience problems with her back and legs whilst working with Qantas but she got little sympathy from her employer in relation to her request for lighter duties.

314       The plaintiff had some time off work, the exact amount she could not recall, from November 2003 until the flare up in late 2004. Further she experienced referred pain down both legs and had problems sitting, squatting and moving before late 2004 and she reported these problems to Dr Cross and Dr O’Gorman. Also the plaintiff had four months off work during that year as she was unable to cope with her pain.

315       Whilst there was an incident or problem whilst performing truck duties in late 2004, save for Mr Battlay’s comment that there was a transient or temporary aggravation of her back condition at that time and a continuation of the original problem from the accident, no other medical practitioners who were aware of that incident attributed any ongoing significance to it. Mr Schutz described it as a temporary aggravation.

316       From that time the plaintiff was changed to administrative duties and she has never been able to return to manual work .

317       The plaintiff has not been free of back pain since the accident. Her ability to sit, stand and walk for prolonged periods has been affected. Whilst she can do things such as housework on a good day, when she has a bad day her pain is such that she has to lie down and rest.

318       Although she can drive and go shopping, she is not able to do so all the time – a situation which she has reported to Dr Cross.

319       The plaintiff continues to take medication such as Panadol and Valium because more significant medication for pain relief causes her stomach problems, as evidenced by her treatment at John Fawkner Hospital in 2006.

320       As Dr Cross explained, the plaintiff would still have pain issues in relation to work if the gambling and drinking problems were removed.

321       I accept that the plaintiff no longer has the capacity for her pre injury employment as a manual worker – a view supported by Dr Cross, Mr Miller and Mr Nye. Mr Schutz, who considered the aggravation in the accident was temporary, considered the plaintiff had a restricted capacity for manual work.

322       There is no film or evidence contradicting the plaintiff’s evidence as to her level of pain and restriction. I accept, save for Mr Schutz, no doctor has suggested the plaintiff is exaggerating or attempting to embellish her symptoms and clinical presentation or that there is a non organic component to her condition of any relevance.

323       Whilst in this case there is an obvious mental response to the plaintiff’s physical injury which is an expected consequence thereof, I am satisfied that the injury has produced an organic impairment of the plaintiff’s lumbar spine, the consequences of which meet the test of seriousness in Humphries v Poljak (supra).

324       Having made this finding, I am not required to consider the plaintiff’s claim pursuant to sub section (c) in relation to psychiatric impairment.

325       Accordingly, leave is granted to the plaintiff to bring proceedings for damages in relation to the accident.

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