Da Silva v Alliance Contracting (Aust) Pty Ltd
[2012] VCC 262
•29 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-11-01272
| ANITA DA SILVA | Plaintiff |
| v | |
| ALLIANCE CONTRACTING (AUST) PTY LTD | First Defendant |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 to 9 and 13 March 2012 | |
DATE OF JUDGMENT: | 29 June 2012 | |
CASE MAY BE CITED AS: | Da Silva v Alliance Contracting (Aust) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 262 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation – Accident Compensation Act 1985, s134AB – serious injury - pain and suffering and loss of earning capacity – permanent impairment of the plaintiff’s lumbar spine – pre-existing lower back condition – whether non-organic factors influencing presentation.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Brookes S.C. with Mr J. Brett | Arnold Thomas & Becker |
| For the Defendant | Miss K. Galpin | Hall & Wilcox |
HER HONOUR:
Introduction
1 By originating motion dated 24 March 2011, the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (‘the Act’) to institute common law proceedings to recover pain and suffering and pecuniary loss damages for injury suffered to her lumbar spine, particularly at levels L3-4 to L5-S1, during the course of her employment with the first defendant on or about 18 May 2007 (‘the injury’).
2 The first defendant supplied services to a meat exporting business. At the time the plaintiff suffered the injury she was employed by the first defendant and worked in quality assurance. It was common ground that the plaintiff injured her lower back when she slipped in the boning room at the first defendant’s premises.
3 The plaintiff described this accident and what happened next at paragraphs 5-7 of her affidavit sworn on 22 November 2010, in the following words:
“5. On the 18th May 2007 I was due to work at the employer’s premises at Chifley Drive, Preston, in the boning room. The floor of that room is concrete with no mats or covers. Each night it is cleaned and the cleaners sometimes dry the floor fully. At other times, wet spots remain in the mornings – they stay on the floor because the atmosphere in the boning room is cold and moist. When the floor is wet, it can be very slippery. On that day, as usual, I was wearing rubber boots, which I had supplied myself, and were of the appropriate type.
6. I was always one of the first ones in. That morning, I went into the boning room and had to turn on the lights. There was a little light coming in from outside but it was quite dim inside. I had to go some distance to the light switch. As I was nearing the switch, I slipped on some water on the floor and I fell, landing on my bottom (‘the accident’).
7. I felt pain straightaway in my bottom and my back. I was able to pick myself up. I knew that I had to report the incident because the employer had a strong emphasis on reporting injuries, so I went to the head office in Bastings Street, Northcote. The boss there suggested that I go to the doctor, but I felt that with rest I would be okay, so I went home. The incident occurred on a Friday, and I stayed home on the Saturday and Sunday. I did not normally work at weekends. On the Monday I went to work but again, my boss saw how bad I was and sent me home. I was able to see a doctor the next day, at my normal clinic – Medical One, Taylors Lakes. I was sent for an x-ray, and referred for physiotherapy (sic)”[1] (‘the accident’).
[1] Exhibit P3, 6.
4 The plaintiff submitted that the accident aggravated and accelerated pre-existing degenerative changes in her lumbar spine such that, in addition to causing ongoing pain and restriction, symptomatic spondylosis permanently incapacitates her from returning to her pre-injury employment.[2]
The evidence
[2] Transcript ("TN") 6 and 190
5 The evidence adduced at hearing consisted of:
· The plaintiff’s evidence in which she adopted the content of her affidavit and a supplementary affidavit sworn on 9 February 2012. She was cross-examined at length. There was no re-examination.
· The plaintiff tendered:
o Reports of the defendants' medico-legal specialist, neurosurgeon, Mr Klug, pp. 8-27 of the Defendants’ Court Book;[3]
[3] Exhibit P1.
o CT scan results 16/4/08 and 26/8/11;[4] and
[4] Exhibit P2.
o Extracts from the Plaintiff’s Court Book, including a number of treating and medico-legal reports, the results of radiological investigations and a summary of her income tax returns.[5]
[5] Exhibit P3.
· The defendants tendered:
o extracts from their court book, consisting of medico-legal reports, the results of radiological investigations and vocational assessments;[6]
[6] Exhibit D1.
o a bundle of extracts from the clinical notes of, treating general practitioner, Dr Oi;[7]
[7] Exhibit D2.
o Sunshine Hospital Emergency Department records dated 27 March 2002;[8]
[8] Exhibit D3.
o Reports not already tendered and extracted from the Plaintiff’s Court Book from physiotherapist, Mr Chan, Spinal Management Clinics Victoria (St Albans), pp.16-19 dated 18 February 2008 and pp.74-79, dated 15 January 2012; A report from Dr Clayton Thomas, pp.20-23, dated 28 May 2009 and 25 November 2009; Report from the Royal Melbourne Hospital, pp.62-63, dated 17 October 2011.[9]
[9]Exhibit D4.
o two surveillance DVDs dated 23 December 2011 (approximately 18 minutes), and 4 and 7 February 2012 (approximately 13 minutes) respectively.[10]
[10] Exhibit D5.
· Dr Oi was called for cross-examination.
The areas of dispute
6 In accordance with their written Statement of Issues and Loss of Earning Capacity document and submissions, counsel appearing on behalf of the defendants, submitted that the issues for consideration included:
a) (without alleging that she had deliberately lied) the plaintiff’s credit and whether she had sought to advance her case by exaggerating the extent of her disability and by minimising (or until she was reminded of these denying) earlier problems with her back. [11] Notably, the plaintiff denied exaggerating the extent of her disability when seen by doctors for assessment;[12]
[11] TN 17 and 164-171
[12] TN 112-113
b) whether there was a significant non-organic component to the plaintiff’s presentation and alleged disability, which required her to “unravel” her condition and exclude other contributing causes.[13] Notably, the only specialist psychiatric evidence before the Court comprised a report to the insurer in October 2008 in which psychiatrist, Dr Duke stated that the plaintiff was not suffering from any psychiatric disorder, although she presented with beliefs and attitudes that may have made a recovery from her back injury more difficult to achieve.[14]
c) whether, given the plaintiff’s capacity for employment, she met the threshold test for loss of earning capacity;[15] and
d) whether, when compared with other cases in the range of possible impairments, the pain and suffering consequence the plaintiff suffered was more than significant or marked, or at least very considerable.[16]
[13] TN 142. See Zivolic v Hella Australia Pty Ltd [2007] VSCA 142 [19] and [20]
[14] Exhibit D1, 57-64
[15]TN 157 and 177
[16]TN 16
7 Without formally conceding the nature of the injury suffered, the defendants acknowledged that most of the doctors have accepted that the accident had aggravated spondylosis in the plaintiff’s lumbar spine. However, drawing in part on the minority medical opinion, the defendants nevertheless questioned whether and to what extent compensable injury, rather than constitutional factors (or for that matter non-organic factors) contributed to the symptoms and restrictions of which the plaintiff continues to complain.[17]
[17] TN 17 and 126-131
8 Where, as in this case, aggravation of a pre-existing condition is alleged the plaintiff is required to address the matters set out in Petkovski v Galletti.[18] The Court of Appeal has recently confirmed that the principles outlined in this transport accident decision apply to injury occurring in an industrial setting.[19] Essentially, the plaintiff is required to establish what injury had been caused by her employment, to establish through the evidence the extent of impairment of her lower back before and after the compensable injury and, at the date of hearing to show that any additional impairment of the function of her lower back was both permanent and serious in its consequences.
[18] [1994] 1 VR 436
[19]AG Staff v Filipowicz [2012] VSCA 60
9 In opening his client's case the plaintiff's counsel conceded that, as demonstrated by earlier radiology obtained in 2006,[20] the plaintiff suffered from pre-existing degenerative changes in her lumbar spine at three levels, L3-4 to L5-S1. However, according to the plaintiff, until aggravated by the injury, the condition of her lumbar spine had resulted in little or no time off work.[21] In other words, through her evidence and the submissions made on her behalf, the plaintiff relied on the discrepancy between her condition and function before and after suffering compensable aggravation injury to her lumbar spine, arguing that the injury continued to be responsible for the serious and ongoing consequences of which she complained.
[20] Transcript (‘TN’) 6
[21] TN 45 and 190-191
10 In addition to permanent loss of earning capacity, both through her affidavit evidence and at hearing, the plaintiff articulated ongoing pain and suffering consequences which included pain (“all the time”[22]), long-term use of pain killing and other medications, disturbed sleep, a loss of independence and a loss of ability to participate in various recreational activities. I will discuss this evidence in more detail shortly.
The statutory requirements
[22] Exhibit P3, 12 [7]
11 Under subsection 37(a) of s 134AB of the Act, to establish “serious injury,” the plaintiff is required to prove she has suffered a “permanent serious impairment or loss of a body function,” which is to be determined on the balance of probabilities. At hearing the plaintiff abandoned her further application made under subsection 37(c) of this provision for leave in respect to injury to her psyche.
12 Having established compensable injury arising out of or in the course of her employment with the first defendant on or after 20 October 2000, the plaintiff must also show that this injury is permanent, that is, “likely to last for the foreseeable future.”[23]
[23]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 [33].
13 Sub-section 38(c) provides that pain and suffering and loss of earning capacity consequences of the injury must, when judged by comparison with other cases in the range of possible impairments or loss of a body function, be fairly described as being more than "significant" or "marked", and as being at least "very considerable."
14 The plaintiff must also discharge the burden imposed by section 134AB(38)(e) which arises pursuant to (e)(i) and (ii), by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more.
15 The plaintiff will not establish the requisite loss of earning capacity if, after taking into account her physical capacity for suitable employment post-injury and her attempts to participate in rehabilitation and retraining, she has a capacity for any employment which if exercised would result in her earning more than 60% of her pre-injury earnings determined in accordance with ss134AB(38)(f) of the Act.
16 The onus rests on the plaintiff to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment (s134AB(19)(b)).
17 As from 1 July 2010, s 5(1) the Act defines “suitable employment” such that the plaintiff’s capacity to earn from suitable employment must be taken into account, regardless of whether the suitable employment is available and is of a type or nature that is generally available in the employment market.
18 If the plaintiff satisfies the loss of earning capacity requirements in s134AB of the Act, she will be entitled to leave to institute proceedings for both pecuniary loss and pain and suffering damages without further determination of this aspect of the application.
19 Sub-section 134AB(38)(h) requires the Court to ignore any psychological or psychiatric consequences of the May 2007 injury for the purpose of paragraph (a) of the definition of “serious injury”.
The Plaintiff’s background
20 The plaintiff, who was born and raised in Portugal, is 44 years of age. She was educated to year 12 level and subsequently worked as a sales assistant.[24]
[24] Exhibit P3, 5 [2].
21 In 1990, the plaintiff immigrated to Australia with her then partner. The two children from that relationship are now adults.[25]
[25] Ibid.
22 The plaintiff resides with her partner of approximately 12 years and her three younger children aged between 12 and 15 years. The youngest of these is a child of her relationship with her partner.[26]
Employment
[26] Ibid.
23 Commencing from 1992, for the first 10 years of her employment, the plaintiff worked as a labourer packing meat into boxes. After completing further study, the plaintiff obtained a Certificate in quality inspection and moved into quality assurance work in 2003, a “new lighter job.” [27]
[27] Ibid 6 [3] and TN 18-19.
24 The plaintiff was employed as a casual, seasonal worker and from time to time her hours and duties varied. At times, so the plaintiff said, she also worked for other companies during the off-season.[28]
[28] Exhibit P3, 10 [3].
25 The plaintiff described her quality assurance duties during cross-examination. They included ensuring the quality of the meat by taking its temperature, inspecting the boning room, checking the room had been cleaned properly, taking a swab of the tables using a microfilm, sending the swab away, maintaining paperwork, ensuring the workers had the right equipment to work with and “[o]nce they commence work you have to make sure that the quality of the meat is right, temperatures, and you have to do that every hour.”[29] She had an office from where she worked and she would move regularly between the office and the boning room throughout the day.[30]
[29] TN 20-21.
[30] TN 21-22.
26 During cross-examination the plaintiff also described a typical day working in quality assurance. This involved opening up to admit the inspectors, over a period of 10 to 15 minutes performing microfilm swabs of the tables in the boning room and performing hourly checks of the quality of the meat and the temperature. The latter required the plaintiff to spend some 45 minutes in the boning room and some 15 minutes or so each hour doing paperwork and preparing reports in her office.[31]
[31] Ibid.
27 In opening her case the plaintiff’s counsel informed the Court that she worked throughout the year and while the work was lighter in winter, than in summer, “when it was on she was working up to 60 hours per week.”[32] Notably, whilst the hours the plaintiff alleged she worked are not mentioned in her affidavit evidence, they were noted in the history obtained from the plaintiff by the defendants’ orthopaedic specialist, Mr Kierce in May 2009 when he recorded, “The work in quality assurance was also fulltime. It involved a lot of supervisory work and paper work. She had to walk around the plant collecting meat for testing usually working 12 hours a shift, working 60 to 65 hours a week”[33] and in the history obtained by the plaintiff's occupational physician, Dr Castle in November 2011 when he recorded, “Initially she worked packing, and then she worked on quality control. She said that this meant she checked product, did and checked paperwork, and did some supervising. She worked about 60 hours a week.”[34]
[32] TN 2 and 5.
[33]Exhibit D1, 40
[34] Exhibit P3, 65
28 Mr Kierce and Dr Castle were not the only doctors who likely proceeded on the incorrect assumption that pre-injury the plaintiff's was employed full-time in quality assurance.[35]
[35] See Mr Klug's report, Exhibit P1, 8-9
29 During cross-examination the plaintiff said that prior to the accident whenever work was available she had been available to work and, in the three years preceding the accident, she had not taken any time off for any unrelated reason. She also said that between 2004 and 2006 she worked consistently for the first defendant; she worked every week or at least part of every week in quality assurance and, from when she qualified in quality assurance, she had worked five days a week: “All the time.”[36] The very clear impression conveyed through the plaintiff’s evidence was that in the period preceding the accident she worked very long hours, five days a week, albeit in a lighter job that permitted her to regularly move between the office where she did paperwork and the boning room where she checked the temperatures and collected samples.
[36] TN 22
30 The plaintiff agreed that pre-accident she was paid at the rate of $18 per hour (with, she said, time and a half for overtime) and that all of the income received from the first defendant before and since the accident appeared in her tax returns.[37]
[37] TN 37 and 40
31 As amended[38] the "Summary of Tax Returns" document[39] tendered by the plaintiff indicates gross income from personal exertion for the financial years before and after the accident as follows:
[38] TN 115
[39] Exhibit P3, 83
2005 $4581 2006 $17,496 2007 $28,089 2008 zero 2009 zero 2010 $9,680 2011 $11,600
32 As submitted by the defendants the gross earnings for 2007 represent the highpoint of the plaintiff’s earning from personal exertion over the three years before and after the accident. For the purpose of this proceed the parties agreed that this sum was the 'without injury earnings' figure, namely the sum that most fairly reflected the plaintiff’s earning capacity had injury not occurred.
33 It was common ground that, notwithstanding the plaintiff’s assertion that she worked 60 hours or more, in accordance with the statutory formula, in determining whether the plaintiff had established a permanent loss of earning capacity productive of a financial loss of 40% or more, the Court was required to apply $28,089 gross as the 'without injury earnings' figure.
34 Extrapolated over the whole financial year the gross sum represents an average of 30 hours per week paid at the rate of $18 per hour, namely $540 gross. However, if the income disclosed reflected work with the first defendant for, say, 60 hours per week the gross income in each of the financial years 2005, 2006 and 2007, was the equivalent of up to four weeks, 16 weeks and 26 weeks work respectively.
35 The evidence I have summarised, particularly as to the hours worked was challenged. Obviously, as was eventually acknowledged by the plaintiff's counsel during final submissions,[40] even when allowance was made for this being casual, seasonal work, the plaintiff's evidence to the effect that she had consistently worked for the first defendant five days per week for 60 hours or more per week,[41] without more, was difficult to reconcile with the evidence of her pre-injury earnings in each of the financial years between 2005 and 2007.
[40] TN 212-216
[41] TN 42
36 Irrespective of whether or not, as submitted by the defendants, the plaintiff had provided an exaggerated account of the hours worked by her,[42] I could not be satisfied that the plaintiff's evidence was a reliable basis upon which to determine the pattern of her pre-injury work or her working hours.
Prior back complaints
[42] TN 164
37 As to the pre-existing condition of the plaintiff’s lumbar spine, in her first affidavit the plaintiff deposed that prior to the accident she “had no major back problems.”[43] The plaintiff is a patient at the Medical One centre. In her supplementary affidavit, sworn shortly prior to the hearing, the plaintiff sought to explain three references to earlier attendances for treatment of lower back pain contained in the copy clinical notes of the Medical One centre, by saying:
“3.(b) ….I do not remember the clinical visit recorded in 1998. I remember the occasion recorded in 2002, when I had back pain and complained of this on one occasion. I believe I treated the back pain with simply a heat pack and it just came and went. It was in no way a major problem, nor was it similar to my present problems.
I also recall a visit recorded in 2006. My substantial complaint at that time was of neck pain and headaches. I have had neck problems and migraines for many years. My lower back was not a serious problem at that time and was nothing like the problems that I now have.”[44]
[43]Exhibit P3, 6 [4]
[44] Ibid, 11
38 Dr Oi has treated the plaintiff for some 15 years. Cross-examination of the doctor confirmed that prior to the accident the plaintiff was treated and prescribed medication for various complaints including mini-strokes (in 2001), migraines, back and neck pain, gastric, shoulder and knee problems. Dr Oi also agreed with the propositions, that the plaintiff had been given “fairly frequent prescriptions of Tramal or Mersyndol” for neck, back and migraine problems;[45] that she had treated the plaintiff for problems with her lower back;[46] that, on 19 July 2006 she had prescribed Tramal for treatment of headaches, migraine and cervical and lower lumbar pain and that, on 4 December 2006, Tramal and Mersyndol Forte were prescribed for treatment of migraine.[47]
[45] TN 62
[46] TN 74
[47]TN 61-63
39 Subject to the rider that CT scans do not show other physical indicia such as muscle spasm, the doctor agreed that the pathology affecting the plaintiff’s lumbar spine revealed by CT scan obtained by the general practitioner on 21 July 2006 (“..minor right paracentral protrusion at L5/S1”) was essentially the same as that revealed by further CT scan on 23 May 2007 (“Minor central disc protrusion at L5-S1...”[48]).[49] I will comment further on the radiological evidence shortly.
[48] Exhibit P3, 68-69
[49] TN 75-76
40 At hearing the plaintiff confirmed that she could not recall the visit recorded in the clinical notes made in 1998.[50] She also confirmed the correctness of the matters to which she deposed in February 2012 regarding her recollection of an episode of back pain in 2002.[51] However, when pressed the plaintiff said she was unable to recall what the problem had been in 2002 (“To tell you the truth, I can't remember. It's been such a long time”[52]). The plaintiff nonetheless responded in the negative to a series of questions directed to ascertaining whether on this occasion back pain had stopped her from getting out of bed and had required her to attend for treatment from a physiotherapist, chiropractor or at a hospital.[53]
[50] Exhibit P3, 11
[51]TN 24
[52] Ibid
[53] TN 25
41 The plaintiff was taken to both the record of an attendance by her at the Sunshine Hospital Emergency Department on 27 March 2002[54] and to the clinical notes of the Medical One centre made on 22 and 27 March 2002.[55] Whilst the plaintiff was first cross-examined about the attendance at the hospital, it is convenient to commence with the 22 March 2002 attendance at the Medical One centre. The clinical notes record a consultation involving, among other things, complaint of chronic soreness in her lower back and neck and a report that a chiropractor had recently told the plaintiff this was due to arthritis. Under cross-examination the plaintiff recalled and was “sure” that the diagnosis of the chiropractor and an x-ray taken related to her neck. In effect, even after she had been reminded about aspects of the clinical and hospital records made, the plaintiff was only able to recall complaining about conditions affecting her neck and shoulders, not her lower back.[56] Her evidence and ongoing denials in regard to this matter were at odds with:
[54] Exhibit D3
[55] Exhibit D4
[56] TN 27-28
· the other clinical notes made on 22 March in respect to the plaintiff's lumbar spine which also record “Tender lumbar musculature” and a normal range of movement. Without distinguishing between the neck or lower back, it appears from these notes that the plaintiff's condition was diagnosed as “mechanical type pain,” physiotherapy, heat treatment and exercises were recommended and Vioxx, an anti-inflammatory medication was prescribed.
· The hospital record made following her presentation on the afternoon of Wednesday 27 March 2002 for treatment of back pain recorded, among other things, a complaint of low back and neck pain for the previous 4 to 5 weeks, with a worsening of pain on Tuesday morning when the plaintiff woke with “severe low back pain and was unable to get out of bed unaided due to pain and weakness.”
· The clinical notes made by another doctor at the Medical One centre also on 27 March 2002 which recorded, among other things, complaint of a sore back “acutely worse since yesterday” and paraesthesia down the left leg. This report and the results of the clinical examination (reduced power in the right dorsiflexion and ankle flexion, decreased sensation for the whole of the foot and an inability to walk toe/heel) indicating as they did a possible disc prolapse, prompted the doctor to arrange x-ray investigation of the plaintiff’s thoracolumbar spine. This investigation on 16 April 2002 apparently returned a normal result.
42 In all, and allowing for the record of treatment and medication prescribed, I formed the view that the plaintiff’s evidence in which she sought to restrict her earlier complaints to neck problems or to attribute her symptoms to the strokes suffered by her in 2001 implausible.[57] If I were to accept her account, the passage of time and the use of drugs to treat her back condition have selectively erased the plaintiff’s memory of a significant episode of lower back pain in 2002.[58]
[57] TN 25-30
[58] TN 30
43 Under cross-examination, in effect, the plaintiff confirmed her affidavit evidence by recalling that when she attended the doctor for treatment on 19 July 2006 her substantial complaint had been in respect to neck pain and headaches, a problem for which she had been treated and regularly took medication (including Mersyndol) until these headaches became less frequent in 2009.[59]
[59] TN 30-31
44 The clinical records do indicate a prior history of attendances for treatment of headaches/migraines. However, allowing for the entry in the clinical records 19 July 2006, the radiological investigation undertaken at the time and the medication prescribed, I was again left with the impression that the plaintiff had been selective in her recollection of this episode.
45 The clinical record,[60] among other things, indicates an attendance for treatment for headaches/migraines and cervical and lower lumbar pain with no obvious precipitant for the back pain. The entry also contained a note, which without further explanation, recorded: “now desk work part-time only”. Clinical examination of specifically the plaintiff lower lumbar spine apparently identified moderate tenderness and moderate reduction in her range of movement. It appears that anti-inflammatory and painkilling medications were prescribed, Mobic (three repeats) and Tramal (two repeats). As I have already mentioned the plaintiff was referred for x-ray and CT investigation of her cervical and lumbosacral spines.
[60] Exhibit D2
46 At the request of the defendants, consultant radiologist, Dr Wilkie, reviewed the reports and film obtained in July 2006 as well as x-ray film and CT and MRI scans of the plaintiff spine obtained between 23 May 2007 and 16 April 2008. In reports, submitted in May and September 2011, Dr Wilkie informed the defendants that there was no evidence that the injury had produced objective changes in the imaging findings, nor had a subsequent unrelated fall in 2008 produced significant change[61] (“Mrs Da Silva’s imaging, both reports and films, confirm that she sustained a shallow right posterolateral lumbosacral disc herniation at a time prior to the known fall of 18.5.2007 and that she has had subsequent imaging which confirms persistence of a shallow non-compressive disc herniation. There is evidence of very early disc degeneration at L5-S1, not reported on the MRI of 1.8.2007 with early changes of disc degeneration without herniation at L3-4”[62]).
[61] Exhibit D1, 4
[62] Ibid, 6
47 It appears that further imaging was obtained in 2009, 2011 and 2012. On 13 July 2009 orthopaedic surgeon, Mr Miller obtained MRI scans, on 26 August 2011 the general practitioner obtained CT scans and, orthopaedic surgeon, Mr Quan who examined the plaintiff once on 21 December 2011 arranged MRI investigation on 10 January 2012 “to further delineate whether or not there is new or compressive pathology” at the level of the L5 nerve root.[63] However, the only reference to the result of the most recent MRI scans is contained in a letter from Mr Miller, who reviewed the film at the request of the plaintiff's solicitors on 21 February 2012. His evidence indicates that, without revealing significant neurological compromise, these scans showed disc degeneration at the L3/4, L4/5 and L5/S1 levels with “disc bulges at L4/5 and a large disc bulge at the L5/S1 level.”[64]
[63] Exhibit P3, 72
[64] Ibid, 61
48 Accepting for the moment the correctness of Mr Miller's unchallenged analysis of the recent MRI film in February this year, as he also opined, this evidence of degenerative disease and prolapse was likely the basis of the plaintiff’s symptoms, presumably those relayed by the plaintiff and recorded on re-examination on 28 November 2011.[65] I will say more about these matters shortly.
[65] Ibid, 52-57
49 In any event, having been pressed to concede this, under cross-examination the plaintiff agreed that she probably had back pain “quite a lot” before May 2007, although this was, she said “nothing like what I've got now”.[66]
[66]TN 45
50 As my discussion of the medical evidence in due course reveals, many of the doctors, including neurosurgeon, Mr Klug[67] on whose evidence the plaintiff specifically relied, assessed the plaintiff without reference to the earlier radiological history and on the basis that, whilst there was clearly pre-existing degenerative disease, this had been asymptomatic (on 28 April 2009 – “The worker stated that prior to the incident on the designated date she had never complained of any back pain”[68] and on 2 March 2011 – “I note it has been mentioned that she may have sustained an aggravation of a pre-existing disorder in her low back which prior to that time was asymptomatic. This is certainly a possibility but, as indicated, I believe the aggravation has not resolved”[69]).
[67] Exhibit P1, 12
[68] Ibid.
[69] Ibid, 19
51 Notably, when Mr Klug re-examined the plaintiff on 30 November 2011 he did so with out the benefit of any further documentation from the defendants. The failure of the defendants to seek their own neurosurgeon’s expert opinion on the import of the radiological and other evidence concerning the plaintiff's pre-existing lower back condition indicated to me that the defendants’ primary concern was to establish, as they ultimately did, that the histories provided by the plaintiff were probably unreliable and that non-organic factors were likely influencing the plaintiff’s presentation.
52 However, in determining whether the plaintiff had addressed the matters raised by Petkovski's case, based on all of the evidence I was satisfied that:
· The plaintiff had suffered an aggravation injury of previously symptomatic lumbar spondylosis.
· As submitted by her counsel, any pre-existing condition affecting the plaintiff lower back had not warranted ongoing treatment, time off work or any claim for compensation prior to the accident in May 2007.[70]
[70] TN 190-191.
53 In these circumstances, the plaintiff’s obvious reluctance to acknowledge pre-existing low back pain, which had required investigation and treatment and, on occasions, her positive assertions to the contrary, indicated to me that the histories provided to the doctors and her evidence required careful scrutiny.
Investigation, treatment and specialist assessment to September 2009
54 The plaintiff ceased working following the accident and received a variety of treatments, generally under the supervision of Dr Oi. Treatment has included physiotherapy, taking painkilling medication and rehabilitation at Dorset Rehabilitation Clinic.[71]
[71] Exhibit P3, 7 [8].
55 From May 2007 until she returned to work in 2009, the plaintiff was certified as totally incapacitated due to her back condition.[72] As submitted by counsel, Dr Oi certified total incapacity payments and these were accepted and paid by the defendants.[73]
[72] Dr Oi, TN 99 and Dr Wyatt’s reports, Exhibit D1, 53 and closing submissions TN 191.
[73] TN 193.
56 On 22 May 2007 (the Tuesday following the accident), the plaintiff attended the Medical One centre at Taylors Lakes. She described instant pain in her lower sacrum and parathesia over the lateral left leg extending to her toes. The doctor who examined the plaintiff recorded tenderness in the plaintiff’s lower sacrum and paraesthesia of the left leg without weakness or loss of reflexes in her lower limbs. Tramal and an anti-inflammatory, Naproxen Sodium were prescribed and CT and x-ray investigation of the lumbosacral spine was arranged for 23 May 2007.[74] The notes also suggest that physiotherapy and osteopathic treatments were recommended.
[74] Exhibit D2 and Exhibit P3, 24.
57 In addition to confirming a small disc bulge at the L5/S1 level, the results of the radiological investigation raised concern that there might be a fracture at the S1 level.[75] On 28 May 2007, the plaintiff consulted Dr Oi. She was referred for physiotherapy and a WorkCover certificate was given for two weeks.[76]
[75] Exhibit D1, 68-69
[76] Exhibit P3, 24.
58 Between May 2007 and her return to work in September 2009 the plaintiff continued to consult Dr Oi on a regular basis and, notwithstanding medications, physiotherapy and hydrotherapy treatments the plaintiff complained of worsening lower back pain. A bone density scan in July 2007 eliminated any fracture injury as a cause and, accepting for the moment Dr Wilkie's analysis of the images, the results of the MRI scans of the plaintiff lumbar spine obtained by Dr Oi on 1 August 2007 confirmed the presence of a shallow non-compressive disc herniation previously noted at the L5/S1 level in the earlier CT images obtained in 2006.[77]
[77] Exhibit D1, 2 and 6
59 In July 2007 Dr Oi referred the plaintiff to the Melbourne Extended Rehabilitation centre (MECRS) at the Royal Melbourne Hospital and in mid-August 2007 she trialled the plaintiff on Endep for pain relief.[78]
[78] Exhibit P3, 25
60 It appears that between August 2007 and July 2008 the plaintiff attended the hospital's clinic.[79] The plaintiff withdrew from this service in the latter part of 2008.
[79] Exhibit D4
61 On attending the clinic in August 2007 the plaintiff apparently reported significant disability, namely lower back pain with an intensity of 10/10 and restrictions on her ability to walk and drive (“she was unable to get up off the couch at times. She had to lie down after ambulating for short distances and was not able to drive for more than 30 minutes…”[80]).
[80] Exhibit D4
62 According to the report submitted by the Royal Melbourne Hospital, on 4 October 2007 analgesic and chronic neuropathic pain medication were prescribed, a further indication of ongoing complaints of significant pain.
63 On 21 December 2007, at the request of the insurer, the plaintiff was examined by occupational physician, Dr Wyatt. In her report among other things, Dr Wyatt noted:[81]
[81] Exhibit D1, 53-56
· advice from the plaintiff to the effect that her job was not available because the first defendant no longer provided services to the meatpacking company, something this specialist felt had influenced the plaintiff’s situation. The plaintiff also described her job in quality control as not physically demanding, rather she felt that the job carried a high level of responsibility and was mentally taxing. This was not only the occasion on which the plaintiff characterised her work as a quality assurance officer as “physically light”.[82] Indeed, as submitted by the defendants, the nature of the duties performed by a quality assurance officer was relevant to the Court’s understanding of the extent of any loss of earning capacity under the statutory formula.
[82] See the report of orthopaedic surgeon, Mr Moran, ibid, 49
· Advice from the plaintiff that she had been reviewed by a rehabilitation provider and was involved in discussions about retraining (“Ms Da Silva may do some further computer-based courses in the New Year”).
· Advice from the plaintiff that her condition had not improved.
· Advice from the plaintiff that she remain symptomatic and that her pain averaged approximately 8/10 most of the time and was aggravated by standing for long periods, house work and walking for too long.
· Advice from the plaintiff that she did most of the house work such as the dishes, cooking, tidying up and cleaning bathrooms, although she had assistance to hang out the washing and shop and from her mother generally. She was also able to drive a car.
· Advice from the plaintiff that she was not receiving ongoing hands-on therapy, although she took Mersyndol, an anti-inflammatory medication, which was not helping.
· That whilst the plaintiff moved somewhat carefully and verbalised her pain, she had no difficulty undressing, she was able to alight the examination couch without difficulty and she walked without a limp.
· That examination revealed mild limitation in range of movement of the back, no sign of muscle spasm, healthy reflexes at the knees and ankles, although the plaintiff indicated soreness and tenderness through her lumbar spine and pain with straight leg raising.
· That having compared the treating doctor's findings with her own, in her opinion there had been improvement without resolution.
· That, other than documentation referring to the results of the MRI scan from August 2007 and the bone density scan no investigations were provided by the plaintiff.
· That the plaintiff was fit to perform her normal job and, in Dr Wyatt's opinion, probably would have returned had this been available. In any event, she considered the plaintiff, who was coping with most of her house work, fit to work on tasks that encouraged her to move about intermittently and did not involve a lot of heavy physical work. Indeed, as the report shows this occupational physician felt that the plaintiff's significant capacity for home-based activities was inconsistent with ongoing certification for total incapacity for work.
64 Based on Dr Oi's clinical notes and reports from January 2008 there was activity on the work front, in as much as the plaintiff met with a new case manager, by March 2008 she had completed further computer training and was then planning to seek secretarial work, starting at four hours per day, her aim being to achieve seven hours per day, two days per week.[83]
[83] Exhibit P3, 25
65 At the request of the insurer in February 2008 the plaintiff was assessed for and commenced a functional exercise program at the Spinal Management Clinic of Victoria, the goal being to return her to normal recreational and work activity. [84] Unfortunately, the plaintiff's participation in this program was short lived because, whilst shopping on 11 March 2008, she slipped in a pool of vomit and fell onto her back and right elbow.
[84] Exhibit D4, 74
66 The fall at the shopping centre led to complaints of worsening pain and new symptoms described in the clinical notes and the doctor's report as: “cold feet, tingling, numbness of the left foot and lower leg”. [85]
[85] Ibid
67 Whilst, at the time Dr Oi may have thought that the CT scan results obtained by her on 16 April 2008 indicated slightly worse changes in the lumbar spine, as I have already mentioned, Dr Wilkie, who reviewed this film and the earlier imaging, considered the CT findings similar to the initial pre-injury CT findings.[86] Where they have considered some or all of the radiology obtained between 23 May 2007 and 16 April 2004, I was satisfied that the medico-legal specialist opinion largely supported a conclusion that the radiology obtained in April 2008 was not indicative of a worsening of the underlying pathology.
[86] Exhibit D1, 3
68 In any event, putting to one side the results of the radiological review, it appears that following the fall in March 2008 there was a worsening of the plaintiff’s reported symptoms coinciding with an increase in her medication and treatment. The report from the Royal Melbourne Hospital states that on review at the pain clinic on 3 July 2008 the plaintiff reported back pain and functional limitations as “10 out of 10 in severity. It was located on the lower back with left knee irradiation...the examination reported marked paraspinous and gluteal spasm and important pain response when each leg was raised to 70°…”[87]
[87] Exhibit D4
69 Within a couple months of the fall at the supermarket the plaintiff was examined by orthopaedic surgeon, Mr Moran at the request of the insurer. Without summarising all of the matters reported, among other things, Mr Moran noted:[88]
[88] Exhibit D1, 49-52
· that the plaintiff denied any history of low back pain prior to May 2007.
· Complaint of constant low back pain with restriction of her back movements and intermittent pain down the left leg to the foot with pins and needles in the toes of the left foot.
· A medication regime including Endep and Nurofen or Panadol as required.
· On examination, restrictions in flexion, extension, right and left lateral flexion and right and left rotation and straight leg raising bilaterally, although her lower limb reflexes were normal. As submitted by the defendants, his findings on examination following the fall in March 2008 (not mentioned in his report) indicate a more substantial restriction of movement than reported by Dr Wyatt some six months earlier.
· The report of the MRI lumbar spine scan contained in the treating doctor’s report and he viewed the CT lumbar spine scans obtained in April 2008.
· That in his opinion the workplace accident had aggravated the L5-S1 disc degeneration and early disc degeneration at the L3-4 level.
· That in his opinion the plaintiff had a current work capacity and was fit for her pre-injury duties, described by her as physically light, although, as a result of the aggravation injury, the plaintiff was permanently restricted to light duty employment, namely work not involving repeated bending and/or heavy lifting and work which allowed her the flexibility to sit or stand as pain dictated.
70 Through her counsel the plaintiff accepted that when he assessed her, Mr Moran probably had no knowledge of the fall at the supermarket some months earlier. Counsel nevertheless submitted that, in view of the general practitioner’s evidence that the plaintiff's condition had settled following the fall, Mr Moran's assessment of partial incapacity for work should be treated as reliable evidence. As my discussion of their reports reveals most treating and examining doctors have concluded that the plaintiff is permanently restricted to performing sedentary/light work. However, of itself this is not enough to extablish a permanent loss of earning capacity productive of a financial loss of 40% or more.
71 Dissatisfaction with her treatment at the pain clinic generated a referral to consultant in rehabilitation pain medicine, Dr Thomas. He initially examined the plaintiff on 3 October 2008. Whilst Dr Thomas appears to have had access to the scans of the plaintiff lumbar spine performed on 16 April 2008 and the earlier MRI scans, Dr Thomas’ report suggests that he too had not been given a history of the fall in March 2008, which had prompted the most recent CT review. Among other things, Dr Thomas noted:[89]
[89] Ibid
· the plaintiff reported lower back pain occasionally radiating into the left more so than the right leg, although her back pain was far worse than her leg pain and her left leg pain was far worse than her right leg pain. She also reported numbness and pins and needles in the left leg.
· Slightly reduced mobility with a slightly slow antalgic gait. As submitted by the defendants, this appears to be the first reference to any alteration in the plaintiff's gait.
· That he had not picked up any non-organic signs.
· That there was some decreased sensation in the plaintiff left leg (patchy and non-dermatomal), which the plaintiff felt may have been related to her previous stroke.
· That the plaintiff still presented with a moderate degree of disability which he anticipated would improve, although in his view she remained partially incapacitated for work.
· That at his instigation the plaintiff completed an eight-week multidisciplinary rehabilitation program at the Dorset Rehabilitation Centre.
· On review on 29 April 2009 the plaintiff continued to complain of lower back pain, eased by lying down. However, she was distressed by her pain. The examination on this occasion demonstrated fairly diffuse tenderness in the plaintiff lower back region.
· A diagnosis of lower back pain, to which work was and remained a material contributor. Of course, this opinion is based on an incomplete history. Moreover, without more, I was unable to understand the basis for this doctor's conclusion that the plaintiff would not be able to return to work in the boning room, if by this evidence Dr Thomas meant that the plaintiff could not return to quality assurance work. In any event in a further report dated 25 November 2009, directed to the plaintiff's work capacity Dr Thomas advised her solicitors that the plaintiff had a capacity to perform suitable employment such as light process work or the like but not her full-time pre-injury employment.
· That at the time the plaintiff's emotional response to her injury and circumstances was contributing to her incapacity.
72 Prior to her return to modified duties the plaintiff was assessed by three of the defendants’ medico-legal specialists, neurosurgeon, Mr Klug in April 2009, orthopaedic surgeon, Mr Kierce in May 2009 and consultant in occupational and environmental medicine, Dr Elder in June 2009. The first of these, Mr Klug examined the plaintiff on 28 April 2009. She was reviewed by him on 8 March and 30 November 2011. Based on his reports, it appears that Mr Klug was never given a history of pre-existing lower back problems (or earlier radiology) or of the fall suffered in 2008. Otherwise, he obtained a detailed history and account of the plaintiff’s symptoms and he had access to the CT scans obtained on 16 April 2008 and to the report, but not the films of the MRI scans obtained on 1 August 2007. The former included the plaintiff's report that:[90]
[90] Exhibit P1, 10-11
· Her back pain had never resolved, although she had good and bad days.
· The dosage of medication varied.
· She could drive and did what she could around the house, although she had difficulty with vacuuming, hanging washing on the line or bending over and making beds. This account of her domestic activities, so the plaintiff's counsel submitted, showed that she was a person who was prepared to continue to work domestically even whilst suffering pain.[91]
[91] TN 196
73 Mr Klug noted that the plaintiff:[92]
· Sat comfortably, walked symmetrically and was able to stand on heel and toe.
· On examination, demonstrated some mild restriction of the expected range of movement mainly involving flexion, right lateral flexion right rotation in association with low back pain, demonstrated no significant tenderness over her spine, due to pain could straight leg raise only to 30° on each side, demonstrated negative sciatic nerve stretch, could fully extend her knee when seated on the side of the examination couch, demonstrated normal findings for motor and sensory function in the left lower limb, had a differential in her calf measurements, the right being 1 cm thinner but no difference in her thigh measurements, showed no reflex change in her right limb, although he found a very slight weakness on the right side in the plaintiff's ability to dorsiflex and plantarflex her right foot and toes and showed normal sensory function in both lower limbs in all regions.
[92]Exhibit P1, 11
74 Mr Klug concluded that:[93]
[93] Ibid, 12-15
· Multi-level degenerative changes involving the plaintiff's lumbar spine were causing back pain with some referral of pain to the lower limbs, without there being evidence of radiculopathy.
· In circumstances where the plaintiff had not previously complained of any back pain it was likely that the accident had aggravated and rendered symptomatic her pre-existing degenerative condition. Of course, this opinion is based on an incomplete history.
· The changes demonstrated by the scans were not of a severe degree and, in his view were not fully consistent with the level of pain described by the plaintiff or with its persistence over a lengthy period of time. Accordingly, notwithstanding the plaintiff's “calm” presentation Mr Klug formed the view that, whereas the plaintiff perceived herself to be suffering from a significant back disorder he was not convinced of this. As my discussion of Mr Klug later reports reveals in due course, I formed the view that he remained unconvinced that the plaintiff's back disorder was as significant as she believed it to be.
· On the history described the accident was a significant contributing factor to the plaintiff's current condition.
· The plaintiff had a work capacity, although he was unable to say whether she had the ability to undertake her pre-injury employment. Rather Mr Klug thought that any activity (including a return to her pre-injury type of employment) where the plaintiff was required to bend, lift and twist on a repetitive basis or stand for long periods of time was probably not within her capabilities.
· With restrictions and possibly periods of rest the plaintiff could cope with at least part-time employment involving some aspects of quality assurance work. In this regard Mr Klug’s early reservations about the plaintiff's capacity to perform her pre-injury duties was likely indicative of a concern that the plaintiff not be asked to perform any physically demanding duties which would require her to bend, lift and twist and so forth.
· The plaintiff should be encouraged to undertake an active physical program such as home exercises and regular walking.
· Her current treatment, namely on average between six and eight Mersyndol tablets daily, was reasonable.
75 I have already mentioned in passing Mr Kierce's report to the insurer dated 20 May 2009.[94] He appears to have been told that the plaintiff had not had any trouble with her back prior to the injury. However, unlike Mr Klug, Mr Kierce was aware that the plaintiff had suffered a fall in 2008 which required further radiological investigation and had given rise to “a lot of pain,” from which the plaintiff said she had recovered within 3 to 4 months.
[94] Exhibit D1, 42-48
76 The plaintiff's account of her symptoms and activities included:
· complaint of constant back pain (worse than her leg pain) with some radiation into the back of the left thigh, calf and into the left big toe.
· Complaint that vacuuming, mopping, making the bed, walking for more than 40 minutes, standing for 20 minutes, sitting for 20 to 30 minutes, coughing and sneezing and bending aggravated back pain. This pain also interrupted her sleep 3 to 4 times a night.
· Taking medications including Endep, one tablet twice daily, Mersyndol Forte, on average six tablets daily and Panadol, using a box of 24 tablets weekly.
· An indication that activities such as showering, dressing, toileting and feeding were not impaired at all.
77 Without repeating these in full, Mr Kierce noted that:
· the plaintiff walked without a limp and presented with a normal spinal posture.
· The plaintiff complained of tenderness throughout the lumbar spine centrally particularly over the left posterior iliac crest and buttock areas and axial compression of the spine caused low back pain. The latter complaint was one of a constellation of symptoms and behaviours which this specialist concluded were indicators of abnormal pain behaviour.
· In respect to the range of movement, flexion of the lumbar spine when standing was to 10° only, although the plaintiff demonstrated a full range of flexion of the lumbar spine when she sat bolt upright before swinging legs over the edge of examination couch. Extension of the plaintiff's spine was decreased by about 50% of the normal range with complaint of pain on lateral flexion to the right and on rotation to right. However, he felt that these movements were good in range. Straight leg raising was positive at 50° on the right and at 15° on the left. The plaintiff indicated global sensory loss and motor weakness of the whole of the left leg with give way signs on resisted motor testing. The findings noted in relation to the plaintiff's ability to flex her spine and the global sensory loss and motor weakness of the whole of her left leg were also factors taken into account by Mr Kierce in determining that abnormal pain behaviour made a significant contribution to the plaintiff's presentation.
78 Mr Kierce concluded:
· that both the workplace injury and the fall in March 2008 had exacerbated pre-existing lumbar spondylosis and, whilst she had recovered from these injuries, the plaintiff continued to suffer from constitutional lumbar spondylosis. However, leaving to one side any reasonable concerns he had about the impact of abnormal pain behaviour, Mr Kierce did not explain why he felt that the effect of the workplace aggravation injury was fully resolved.
· The plaintiff had a work capacity for full-time, suitable employment. She was fit for her pre-injury employment, although the plaintiff was “definitely permanently” unfit for work which involved prolonged or frequent bending, lifting weights exceeding 15 kg, the use of heavy jarring implement such as picks, shovels and crowbars and the driving machinery which gives rise to vibrations.
· That apart from continuing her use of Endep for treatment of depression the plaintiff should concentrate on taking only Panadol, no more than six per day and establish a self managed exercise program.
79 Dr Elder examined the plaintiff on 4 June 2009 and again on 18 March 2010.[95] he was asked to assess impairment in respect to both the lower back aggravation injury and a claimed gastric condition. Dr Elder did not mention any pre-existing lower back condition in either of his reports, rather he recorded that the plaintiff had denied any other history of injury to her low back. However, Dr Elder was clearly aware that the plaintiff suffered further injury as a result of the fall in March 2008, from which the plaintiff also reported she had made a full recovery, such that her symptoms had returned to the same level as prior to the fall.
[95]Exhibit D1, 28-37
80 Apparently the plaintiff reported pain in her low back radiating to the left leg, without describing radicular symptoms in her leg. As to her activities the plaintiff reported walking 15 minutes per day, using an exercise bike 10 minutes twice daily, a capacity to drive an automatic car, an inability to mop, vacuum or hang out washing and independence in self-care. The plaintiff described her daily routine as involving taking children to school, going around the shops, visiting friends, doing a bit of house work and watching television.
81 Without repeating these in full I note that on examination Dr Elder observed features of her presentation, which he thought suggestive of non-organic overlay. These included:
· the plaintiff walking with a limp during formal examination but not as she entered from the external waiting-room.
· Discrepancies in her range of movement on formal examination. For instance, when the plaintiff was on examination couch the doctor observed a greater than 90° forward flexion in a sitting position with her legs out straight as well as a straight leg raise of 90° with no discomfort as he ascertained the plaintiff’s plantar responses.
· Tenderness to light touch with what the doctor thought was an exaggerated response and a positive result to testing such as axial compression and simulated rotation.
· Diminished sensation in a non-anatomical distribution affecting the whole of the plaintiff's left leg to the belt line. Apparently power was normal with encouragement, having at first been of a collapsing give way pattern.
82 Based on the history reported, his clinical findings and the radiological evidence, that is the MRI scan result from 2007 (“non-specific changes”) and the CT scan result from April 2008 (“minimal degenerative change”) Dr Elder concluded that there was no identifiable organic physical medical condition affecting the plaintiff's lumbosacral spine. His conclusion, unchanged following re-examination in March 2010, is at odds with the opinions expressed by the treating doctors and other specialists. However, Dr Elder’s observations of the plaintiff’s behaviour during each of his examinations were nonetheless relevant to my assessment of the likely role of non-organic factors.
83 On 30 June 2009 orthopaedic surgeon, Mr Miller examined the plaintiff at the request of her solicitors. His first report is dated 12 August 2009.[96] He re-examined the plaintiff once on 14 November 2011 following referral from Dr Oi.[97] However, as I have already noted, having reviewed the CT scans obtained on 26 August 2011 and the MRI scans obtained on 10 January 2012 Mr Miller submitted supplementary correspondence to the plaintiff’s solicitors on 18 January 2012 and on 21 February 2012.[98]
[96]Exhibit P3, 47-51
[97]Ibid, 52-57
[98] Ibid, 58-59 and 61-62
84 In June 2009 the plaintiff reported no prior problems with her back and, whilst the fall in March 2008 was not raised on this occasion, this issue was subsequently considered by Mr Miller on review in November 2011. In any event, in June 2009 the plaintiff complained of ongoing problems with lower back pain and discomfort which radiated into both legs and caused feelings of numbness and tingling in her legs. She apparently emphasised back pain as her dominant problem and left Mr Miller with the understanding that her symptoms had been relatively resistant to medications and physiotherapy.
85 On examination Mr Miller noted diffuse tenderness in the lumbar spine with lower lumbar muscle spasm and range of motion reduced to approximately 2/3 of normal. However, he found no neurological deficit with power sensation and reflexes preserved.
86 Apart from accessing the MRI scans and CT scans obtained in August 2007 and April 2008 respectively Mr Miller arranged a further MRI scan of the plaintiff's lumbar spine on 13 July 2009. As far as I can tell from the materials before the Court a copy of the radiologist’s report of these scans was not tendered. However, in his report Mr Miller stated (and where other specialists have had an opportunity to read his report they have relied on his interpretation of these images) that: “This revealed a right paracentral disc protrusion at the L5/S1 level abutting the right S1 nerve root. No other specific abnormality was detected.”[99] Notably, of itself this pathology would not explain the worsening left leg symptoms of which the plaintiff has continued to complain.
[99]Ibid, 49
87 In 2009 Mr Miller concluded that:
· as a result of the accident the plaintiff had suffered aggravation of pre-existing but asymptomatic degenerative disease in her lumbar spine without evidence of neural compromise. In his view this accounted for her current clinical status.
· The plaintiff's poor response to conservative treatment and the rehabilitation program undertaken called for further review with a multi-disciplinary back rehabilitation program and possibly maintenance physiotherapy and other modalities.
· The plaintiff's work capacity was subject to permanent restrictions on repetitive bending and lifting (no more than 5 kg) and she required employment that allowed her to shift her posture on a regular basis. Notably both in this and in his later report Mr Miller placed no restriction on the hours worked.
· It was likely that the plaintiff’s symptoms would continue at their current level.
· Whilst he did not have detailed notes on the plaintiff’s lifestyle, her symptoms would likely impact on physical, leisure, recreational, domestic and gardening activities.
88 To summarise then, by mid-2009 specialist opinion was divided as to whether the degenerative disease affecting the plaintiff lower spine and aggravated by the injury remained symptomatic and, irrespective of whether or not they considered this to be due to the ongoing effects of the injury or to constitutional factors, the neurosurgeon and two orthopaedic surgeons concluded, that the plaintiff was suffering from symptomatic spondylosis. Notably, of the four specialists who examined the plaintiff between 28 April and 30 June 2009, Mr Miller was the only specialist not to comment on non-organic factors.
89 Nevertheless, the three surgeons all agreed that the plaintiff's work capacity had been permanently affected and they cautioned against a return to unrestricted employment in which the plaintiff was exposed to activities such as repetitive bending and twisting, lifting of weights and so forth.
90 On 6 July 2009 the plaintiff underwent a gastroscopy, the results of which indicated hiatus hernia and gastritis.[100]
[100]Exhibits P3, 30
91 Vocational assessments undertaken on 23 April 2009[101] and on 7 July 2009[102] identified various alternative suitable employment options, in the first instance Quality control, Inquiry Clerk and Sales Clerk and in the second instance, a range of clerical positions as well as employment as a Customer Service Officer, a Call Centre Officer, a Quality Assurance Officer (essentially the plaintiff's pre-injury position) and as a Cake Decorator (an extension of a reported hobby and interest).
Return to work between approximately September 2009 and June 2011
[101]Exhibit D1, 72-82
[102] Ibid, 83-102
92 The plaintiff did not work from the time of the accident in May 2007 to approximately September 2009. Relying on both her affidavit and oral evidence,[103] at the suggestion of the plaintiff's boss, the plaintiff who deposed to having been very bored, stressed and depressed at home, returned to part-time quality assurance work at a wholesale meat shop, Liberty Meats. She commenced working for 12 hours per week and shortly thereafter, graduated to 15 hours per week.
[103]Exhibit P3, 7 [10] and TN 31-33 and 46-50
93 Under cross-examination the plaintiff agreed that in September 2009 she told Dr Oi her preference was to work three days, for four hours a day, mainly performing quality assurance work on the computer and some occasional serving. [104]
[104]TN 48
94 At the time she swore her first affidavit in November 2010 the plaintiff thought that she had been working 15 hours per week on Thursday, Friday and Saturday for about 12 months. The plaintiff described her work as “very light work” involving sitting or standing, depending on the task she was performing, taking temperatures, ensuring that the refrigerators were clean and doing paperwork. Whilst she said she had coped with her work and wanted more work the plaintiff deposed that she founded the work very tiring and she expressed a belief that she could not manage more.
95 Under cross-examination about the hours she worked the plaintiff denied working up to 22 hours at some stages or telling Mr Klug that she had worked up to 22 hours a week at times (“No, no, never did”). Whether or not, as recorded by him, the plaintiff had given Mr Klug the impression that at times (with some breaks) she had worked up to 22 hours per week,[105] in her supplementary affidavit the plaintiff clearly indicated that at one stage, apparently whilst working in the shop and serving customers, she had tried and due to worsening pain (“a lot worse”) she had not coped working 22 hours per week. The plaintiff further deposed that:[106]
“… I went back to working 15 hours but eventually I had to stop completely because I was being asked to do too much, both in the hours required of me in the duties involved. My pain became worse. Everything became too much for me and I became very depressed. I could not keep going and I stopped work in about June 2011. I have not worked at all since then.…”
[105]TN 50
[106]Exhibit P3, 11 [5]
96 Under cross-examination the plaintiff agreed: [107]
[107]TN 32-37
· That the quality assurance work she had performed involved similar duties to those previously performed by her and that, as she had told various doctors, she had manage these duties, but not the additional duties when required to help in the shop. The quality assurance duties involved, she said, paperwork, keeping records and preparing reports. According to the plaintiff she undertook periodical checks (“probably half an hour each time”) and recorded the temperatures for six refrigerators and a freezer, after which she returned to her desk to compile the paperwork.
· That the quality assurance work allowed her to vary her posture, by moving around, sitting and standing still.
· That most of the work she was required to complete was similar to the work she had been required to do prior to the accident and that the additional tasks were the difficult tasks to which she referred when she spoke to the doctors.
· That had she not been required to do a second job assisting with the sales work and serving in the shop she would have kept working in quality assurance work, which did not require her to bend down or pick up boxes.
97 Accordingly, having managed a return to work over almost 2 years, the plaintiff clearly blamed duties other than the quality assurance duties when during cross-examination she added:[108]
“Because when I started working there, yes, I was to help on the cash register, and then it started to become too much and they asked me to go into the chiller and grab a box. I can't carry a box of 27 kilos. I can't bend down to the cabinet to pick up a five-kilo bag of meat when it's right at the front of the cabinet, and they are sort of starting to have a go at me and I started to get depressed.”
[108]TN 54-55
98 The plaintiff's evidence in this regard finds general support in:
· the general practitioner's clinical notes inasmuch as on 6 December 2010 the doctor recorded that the plaintiff was very busy at work and on 7 February 2011 that she was “getting hassled at work to do more”.[109]
· the general practitioner's opinion to the effect that had the plaintiff’s job requirements not been altered, she remained fit to perform (on a continuing basis) the modified duties previously performed in the butcher shop.[110]
· Mr Klug's report following re-examination of the plaintiff on 30 November 2011.[111] This report records an account by the plaintiff to the effect that shortly after she was examined by Mr Klug in March 2011 the employer asked her to undertake alternate sales duties which required her to stand for lengthy intervals of time and undertake bending and lifting activities. Importantly, in late November 2011 Mr Klug was left with the understanding that, had the plaintiff not been required to perform these additional sales duties she believed that she would have continued her quality assurance work, “albeit with some ongoing symptoms.”
[109]Exhibit D2
[110] TN 77
[111] Exhibit P1, 22-27
The treatment and medical evidence post-dating the return to work
99 Among other things Dr Oi's clinical notes made between September 2009 and November 2011 (and her reports dated 4 October 2009 and 6 March 2010) evidence a successful return to modified duties, albeit punctuated by treatment for other medical conditions and intermittent flare-ups in back pain which, from time to time, also appear to have coincided with non-work-related family concerns and on occasions required reduction in the plaintiff’s working hours.[112]
[112] Ibid
100 The doctor's clinical records kept in this period (and on which the plaintiff relied to support the proposition that she was doing everything that she could[113]) indicate that:
[113] TN 209
· in May 2011 the plaintiff was limping slightly, which at hearing the doctor thought was probably due to referred pain from the plaintiff’s back.[114] Without being able to say whether the plaintiff had limped consistently since ceasing work, the doctor nevertheless told the Court that she had subsequently observed a very mild limp.
[114] TN 82
· In July 2011 the plaintiff reported that the week before migraine and left hand and leg paraesthesia had required attendance at hospital and, whilst this had improved, she was still experiencing tingling in her left hand and leg. She also reported a flare-up in low back pain and presented with a very tender lower central lumbar spine, minimal range of movement and with what the doctor described at hearing as “a lot of muscle spasm.” The latter she thought was causing the plaintiff’s back pain.
· In August 2011 a worsening of back pain with paraesthesia in the plaintiff’s left leg. Her presentation on this occasion prompted the doctor to obtain further CT scans, the results of which indicated radiological evidence of “mild posterior disc bulge at the L5/S1 causing minimal thecal indentation. A very minimal left paracentral disc bulge at the L4/5, not causing any significant spinal canal stenosis.”[115]
· In September 2011, ongoing lower back pain for which the plaintiff was receiving physiotherapy.
· In October 2011 a flare-up in lower back pain, triggered by vacuuming 2 weeks earlier, with pain radiating to both hips and limping.
[115] Exhibit P3, 60
101 However, both during cross-examination and re-examination Dr Oi clearly indicated that non-organic factors were impacting on the plaintiff's presentation.[116] For instance, the doctor:
[116] TN 76-77, 94-96 and 103
· agreed that at times the plaintiff's presentation was effected at least by psychological factors and that psychological factors formed a significant part of her presentation “overall”.
· Agreed that the plaintiff's presentations with a flare-up in back pain were associated with times of emotional stress (“Sometimes, but sometimes not”).
· Emphasised that the stress of this Court proceeding was affecting the patient “quite a bit” and appeared to accept that the plaintiff could move on “… If we could find a position to watch or two before originally in the butcher shop – computer work for three days a week 15 hours a week with limited duties other than being at a desk – I think she probably could be capable of doing that. But at the moment she is very stressed.”
· Agreed that the presence of non-organic factors made it difficult to assess the extent of the physical consequences of the plaintiff's lower back condition.
102 Dr Elder re-examined the plaintiff on 18 March 2010 both in respect to her lower back and gastric conditions. [117] As to the plaintiff's lower back condition she apparently reported:
[117] Exhibit D1, 32-37
· no change in her symptoms: pain in the lower back.
· Regular monthly visits to her general practitioner with medication including the Mersyndol Forte, two tablets at night as required and against the advice of her doctor, she was taking six Voltaren tablets daily.
· Her return to work, working most weeks for 15 hours over three days, although she also told Dr Elder that she had not been able to sustain the 15 hours work in “a lot” of weeks.
· Her personal/social/activities of daily living were unchanged.
103 Dr Elder made similar observations and findings to those reported by him in June 2009, including an observation that the plaintiff limped when formally examined but not on her entry from the waiting room. As previously noted the doctor reiterated his diagnosis and his belief that the plaintiff's clinical features and history were suggestive of non-organic overlay.
104 When Mr Klug re-examined the plaintiff on 2 March 2011 she reported more severe pain in her back and lower limb.[118] Whilst his examination revealed some restriction of movement, which appeared related to pain, Mr Klug found no objective signs on neurological examination to account for the symptoms in the plaintiff's left lower limb. For instance, the symptoms reported and observed by him included limping where the plaintiff appeared to favour her left lower limb. The plaintiff apparently told Mr Klug that this was not always present. However, on this occasion the plaintiff said she limped because of the lengthy travel required to attend the medical examination.
[118]Exhibit P1, 16-21
105 Mr Klug did not have access to the MRI scans or report obtained by Mr Miller in July 2009. He again concluded that the compensable aggravation injury had not resolved and that the images he had already seen, which demonstrated multi-level degenerative changes in the plaintiff back (“not of great substance”) could be associated with the complaints described by the plaintiff. As I have already observed I formed the view that Mr Klug had difficulty reconciling the revealed pathology, the history and his clinical findings with the symptoms and level of pain reported by the plaintiff, whom he nonetheless believed to be sincere.
106 In any event, during the course of this further examination of Mr Klug also obtained a history confirming the plaintiff's return to part-time employment performing her pre-injury duties for 15 hours per week and that the plaintiff was "able to cope in a fair way with the requirements of this duty” and undertake employment in quality assurance “albeit with some minor difficulties”. In March 2011 Mr Klug was not able to determine whether the plaintiff was capable of resuming full-time work in the quality assurance area, although he did not exclude the possibility of the plaintiff progressively increasing the number of hours worked.
107 Essentially, in March 2011 Mr Klug accepted that the plaintiff was capable of undertaking suitable, part-time employment and, having considered the vocational assessment report document dated 17 July 2009 he endorsed the seven options suggested (which included work as a Quality Assurance Officer) stating: “None of the activities described would appear to be particularly arduous.”
108 In November and December 2011 the plaintiff attended for further specialist treatment and examinations.
109 Occupational physician, Dr Castle examined the plaintiff at the request of her solicitors on 8 November 2011.[119] At the time he appears to have had access to a number of reports including reports submitted by Dr Wilkie, physiotherapist, Mr Chan, Mr Klug, the general practitioner, Dr Thomas, a psychiatrist whose report was not tendered and the vocational assessment report dated 17 January 2009. In the absence of any imaging, Dr Castle said that he had relied on Mr Miller's report of the results of the MRI scans on 13 July 2009 (“right paracentral disc protrusion at the L5/S1 level abutting the right S1 nerve root”) and on the diagnosis reported by Dr Oi in a letter to the plaintiff's solicitors dated 4 October 2009,[120] in which she stated that the plaintiff was suffering from “chronic low back pain due to central canal stenosis at L4-L5 and L5 and S1, together with left L4/5 foraminal stenosis and right S1 sciatica.”
[119] Exhibit P3, 64-71
[120] Ibid, 28
110 In the course of this examination the plaintiff apparently reported, among other things:
· pain in her lower back radiating down the back of her left leg and sometimes on the back of her right leg.
· Pain was aggravated by domestic tasks (she found ironing hard and hanging out the washing too hard, she needed assistance with cooking and the shopping was done by her son) and caused her to wake at night.
· Weakness in her left leg and paraesthesia over the dorsum of her left foot.
· Pain levels between 5/10 (at its least) and 10/10 at its worst.
· A sitting capacity of about 30 minutes provided she moves around on a chair, a standing capacity of about 30 minutes, a walking capacity of about 45 minutes, a driving capacity of about half an hour at a time and a carrying capacity of about 5 kg.
· Feeling depressed.
· Slowness in performing personal care activities and she required assistance with her shoes.
· That having worked in a wholesale meat business doing accounts and quality control for about 15 hours a week between August 2009 and June 2011 (“she has been basically doing clerical work”), she was looking for work.
· That she believed she could do retail work for about 15 hours a week, that she could do check-in work for Virgin Airlines, that her office skills had decreased and that she could also work decorating cakes.
111 Without repeating the results of the clinical examination in detail, in addition to noting that the plaintiff walked with a limp, Dr Castle’s findings included a much reduced range of movement, diffuse swelling in her left calf, decreased sensation in her left lower limb and an inability to walk on her toes. Without attempting to explain the relationship between his clinical findings, particularly those affecting the plaintiff’s lower limbs and her underlying condition, Dr Castle concluded that the plaintiff's back pain was due to aggravation of degenerative changes in her lumbar spine adding: “There is little evidence of any clinically significant intervertebral disc lesion, but there is some.”
112 As to the plaintiff’s work capacity, I note that Dr Castle's report fails to mention that the plaintiff left her employment in 2011, because, as the plaintiff told the Court, the additional sales duties she had been required to perform, which exceeded the recommended restrictions imposed on her physical activities, had aggravated her lower back condition. This omission could account for Dr Castle’s apparent belief that her quality control work had involved "a reasonable amount of physical work” and his conclusion that the plaintiff was incapacitated for her pre-injury employment. If I am wrong in my interpretation of his report, his conclusion in this regard was nevertheless inconsistent with his later advice that, with restrictions on her physically activities (these have already been described by most of the other doctors) and the hours worked (part-time for 15 hours per week), the jobs, other than the Call Centre and Cake Decorating positions, to which the vocational assessment report referred (including work as a Quality Assurance Officer) were probably within the plaintiff’s capabilities.
113 As already noted, Mr Miller saw her on 14 November 2011 on referral from the general practitioner[121] at which time he also obtained a history of the fall in March 2008 and the plaintiff's report that any aggravation of her back pain had settled to “approximately the previous level”. Based on the plaintiff's report Mr Miller was satisfied that this fall had not influenced the long-term evolution of the plaintiff's spinal disease.
[121]Exhibit P3, 52-57
114 Evidently, the complaints made on this occasion were much the same as previously recorded: low back pain and discomfort, with radiation into the buttocks and into both legs, vague feelings of numbness and tingling with back pain as the dominant feature. The plaintiff also reported that her symptoms fluctuated and that she suffered significant sleep disturbance. There is no report of limping or, for that matter, observation made by this specialist of any impact on the plaintiff's gait.
115 Clinically, the plaintiff again presented with diffuse tenderness in her lumbar spine, “mild” lower lumbar muscle spasm and a reduced range of motion. Relevantly, whilst Mr Miller's diagnosis and prognosis remained unchanged, on this occasion, without further explanation he noted an adverse mental state reaction for which he recommended psychiatric review.
116 As to the plaintiff's work capacity, in effect Mr Miller reiterated his earlier opinion, namely that due to the condition of her lumbar spine the plaintiff was permanently restricted to performing light work. However, having read Mr Miller's report I was surprised to find no reference to the plaintiff having returned to quality assurance duties for a two-year period commencing from after his assessment in 2009 and concluding some months before Mr Miller's final assessment in late 2011: “She is not currently working….” and “She stated she has not been able to return to work because of issues of chronic back pain”.
117 Relevantly his letters to the plaintiff's solicitors in January and February 2012[122] in which Mr Miller commented on the further imaging, the CT scans obtained on 26 August 2011 and the MRI scans obtained on 10 January 2012 indicate that the pathology revealed after repeat radiological investigation had not caused Mr Miller to alter the findings made and conclusions reached by him following re-examination in November 2011.
[122]Ibid, 58–59 and 61
118 A couple of weeks after Mr Miller's examination, on 30 November 2011 Mr Klug also re-examined the plaintiff. [123] According to this report the plaintiff was taken to and confirmed the accuracy of the history obtained by Mr Klug when she was last examined in March 2011.
[123] Exhibit P1, 22-27
119 As to her symptoms, the plaintiff apparently told Mr Klug that she:
· had been attending a physiotherapist without this treatment providing any long-term relief.
· Took between one and three Tramal tablets each day, which provided some relief. This medication was supplemented with Panadol and Mersyndol, up to 4 tablets each daily when pain was severe.
· Suffered low back pain of variable severity, which tended to spread towards the left lower limb, extending on occasions as far as her left foot and intermittent pain over the outer aspect of her hip.
· Was not aware of any definite weakness in her left lower limb although she tended to walk with a slight limp. According to Mr Klug the plaintiff was able to walk but did exhibit a limp favouring her left lower limb. Moreover, she was able to stand on heel and toe on the right side but had difficulty performing this task on her left side, ostensibly due to pain.
· Thought sensory perception was normally perceived. On examination Mr Klug noted moderate restriction of movement of the plaintiff's spine and mild restriction of straight leg raising related to back pain. However, sciatic nerve stretch tests were negative. Mr Klug said he had been unable to detect any evidence of impaired motor or sensory function or evidence that the plaintiff was suffering from radiculopathy.
· Was able to perform light physical activities within her home, although using a vacuum cleaner or sweeping and mopping substantially aggravated her condition and she drove a motor vehicle with some difficulty.
120 Clinically, Mr Klug noted that the plaintiff appeared “to be in some genuine pain” and that there was some restriction of movement of her lumbar spine. However, he found no objective neurological abnormality, reporting that his findings in respect to the plaintiff's lower limbs were similar to those noted and reported in the past. In other words, there was no evidence of radiculopathy or sensory loss impacting her lower limbs. Of course this does not exclude the possibility that from time to time symptoms such as the muscle spasm noted by other doctors has not also caused referred pain.
121 I have already mentioned the plaintiff's report to Mr Klug, to the effect that the alternative sales duties performed by her after March 2011 had exacerbated her pain levels and led to the cessation of her employment in mid-2011 and her belief that, had these additional duties not been imposed, she would have continued performing her quality assurance work. The latter provides a clear indication that as recently as November 2011 the plaintiff probably believed herself fit to perform her pre-injury duties at least on an ongoing, part-time basis.
122 Mr Klug also obtained a history indicating that the plaintiff had endeavoured to obtain alternative work. This included check-in work with Virgin Airlines, employment the plaintiff told him she was prepared to try after he questioned her capacity to cope with work he believed could involve some physical activity, such as manipulating luggage. Nevertheless, as Mr Klug also observed, the fact that the plaintiff was seeking employment which appeared to involve some physical requirements could suggest that her activities were somewhat better than described by her during the course of his examination. The film shown at hearing, about which I will say more shortly, indicated to me that the plaintiff’s activities were and probably are somewhat better than described by her, whether to Mr Klug or in her evidence.
123 Under cross-examination the plaintiff said that she had been knocked back after she applied for part-time work with Virgin Blue, adding that as soon as she told “them” that she was on workers compensation “nobody" would take her.[124] Through her responses to further cross examination I was satisfied that the check-in position for which the plaintiff had applied was not one that involved manual handling of luggage and was, as the plaintiff agreed, a job she considered to be within her physical capabilities.[125]
[124] TN 50
[125] TN 51
124 To summarise then Mr Klug reiterated his opinion that the plaintiff was suffering from symptomatic lumbar spondylosis, which was responsible for back pain and referral of pain without evidence of radiculopathy involving her left lower limb. Relevantly, he concluded by saying:
“This person did appear to be a little anxious but I was not convinced that non-physical factors were a dominant issue in regard to her presentation. Possibly such factors could be contributing in a slight degree but I remain of the opinion that the evidence did suggest that she had a genuine ongoing physical disorder which is interfering to some extent (my emphasis) with her day-to-day activities including her ability to undertake in an unrestricted manner various types of employment.” [126]
[126] Exhibit P1, 27
125 The plaintiff submitted that the evidence of the orthopaedic surgeon, Mr Miller accords with that of the neurosurgeon, Mr Klug. Certainly, they and Dr Castle have diagnosed an ongoing aggravation injury and (leaving to one side Dr Castle’s findings relating to particularly the plaintiff’s left lower limb) their clinical findings in November 2011 combined with the up-to-date radiology have helped confirm the likely absence of neural compromise.
126 However, in addition to the failure to mention any return to work by the plaintiff over a two-year period, an important distinction between the report submitted by Mr Miller and Mr Klug in November 2011, is that Mr Miller probably never received complaint of or observed the plaintiff limping.
127 Orthopaedic surgeon, Mr Quan examined the plaintiff on 21 December 2011.[127] Among other things, he appears to have been informed that:
[127] Exhibit P3, 72-73
· in the previous six months the plaintiff's symptoms had worsened, she was suffering severe lower back pain and left leg pain, radiating down her left buttock, posterior thigh and down to the posterior and lateral aspect of the calf and into the foot.
· Leg pain and back pain were bothering the plaintiff to a similar extent.
· Pain was present on a constant and daily basis and restricted all of the plaintiff's activities of daily living and affected her quality of life.
· The plaintiff suffered nocturnal pain and “never goes a day without pain”.
· The plaintiff required Tramadol tablets three times daily.
128 Mr Quan only had access to the results of the CT scans performed in 2008 and 2011. Pending the result of further MRI scans to investigate whether nerves and soft tissue were causing neural compressive pathology affecting the left L5 nerve root, Mr Quan diagnosed non-specific lumbar back pain. There is no further report from this specialist.
129 However, allowing for Mr Miller's assessment of the images obtained on 10 January 2012, radiologically the L5 nerve root has not been compromised and a far as I can tell, there was no clinical evidence that could account for the level and severity of the symptoms impacting the plaintiff’s left lower limb when the plaintiff was examined by Mr Quan on 21 December 2011.
130 Notably, Mr Quan’s report, in so far as it describes the plaintiff’s presentation on 21 December 2011, very closely resembled my observation of the plaintiff's behaviour on each of the three days over which this application was heard:
“During the consultation and examination, she was distressed and grimacing in pain, walking slowly and with an antalgic gait favouring the left leg…… She looked in a great deal of discomfort and this would likely place restrictions on her capacity for employment. However, the fact that a patient can travel to see me, sit in a waiting-room, fill-in forms and have an intelligent conversation with me that means they have a capacity for some work, even if only the most sedentary type (sic).”
131 This presentation (“her symptoms were so intractable and she looks so distressed during the consultation”) and the distribution of the plaintiff’s reported leg pain prompted Mr Quan to arrange for a selective left L5 nerve root block “as both a diagnostic and therapeutic” measure.
132 According to both the plaintiff’s affidavit and oral evidence[128] two epidural injections in January and February 2012 had not “helped” her symptoms.
[128]Exhibit P3, 12 [6] and TN
133 In her first affidavit the plaintiff deposed that if pain down the left side of her left leg was “really bad” she limped.[129] However, in the most recent affidavit the plaintiff deposed that she limped “a lot of the time, although not all of the time.”[130]
[129] Ibid, 8 [11]
[130] Ibid, 12 [7]
134 Under cross-examination the plaintiff answered a number of questions about limping where she favoured her left leg, namely the “antalgic gait” to which Mr Quan had referred.[131] Through the responses given by her, the plaintiff:
[131]TN 57-59
· was able to recall (when reminded by counsel) that she had been distressed and grimacing in pain, she had walked slowly and that she had walked with “a pain-avoiding gait” favouring her left leg during her consultation with Mr Quan.
· agreed that limping had been a persistent problem “since the problems that put” her off work in mid-2011 (“Yes, most of the times, yes”),
· indicated that the limp was present “all the time, because I've got the pain on the back all the time, and it comes down to my leg all the time”.
· Indicated that sometimes the limp was worse than others.
135 At various times the plaintiff responded to questions directed to ascertaining the level of her current domestic activities[132] now that she was not working (“Just stay at home”). Essentially she denied managing most of the house work, doing the vacuuming since her back locked when she tried to vacuum “a few months” earlier, helping look after her mother who lives with her or helping look after her 5 year old grandson before he was able to walk and look after himself. However, the plaintiff did indicate that she ironed, but not for too long and that her children helped her with the cooking, cleaning and making beds, although the plaintiff also made it clear that because her children were teenagers she was unable to rely on them all the time.
[132]TN 52-53 and 56-57
136 By her account the plaintiff filled her day by watching “little bit of TV at 2 o'clock”, by going to the shops “to just kill a bit of time” or by having coffee with a girlfriend.
The film
137 This brings me to my discussion of the surveillance film obtained on 23 December 2011 (two days after Mr Quan's examination) and on 4 and 7 February 2012.
138 In his closing, the plaintiff's counsel made submissions as to the content of the film.[133] He submitted that on 23 December 2011 on various occasions between 9:25 am and 10:56 am, the plaintiff could be seen limping or walking slowly and exhibiting other behaviour consistent with ongoing disability, as for example, leaning on a trolley containing her grandson and pushed by the plaintiff as she walked through a shopping mall or as she entered/exit at a motor vehicle in what appeared to be a careful and slow fashion.[134] Counsel made similar submissions in respect to the plaintiff's activities depicted in the film obtained on 7 February 2012. Moreover, counsel submitted that the film did not contradict the extent and nature of the clinical treatment recorded by the treating general practitioner indicating that the plaintiff had not recovered from her injury.
[133] TN 217-221
[134]TN 217-221
139 I do not propose to describe each and every activity depicted in the films. In the first segment of film the plaintiff was filmed shopping over a three hour period in the company of some members of her family (a young woman, the plaintiff’s 12 year old son and her 5 year old grandson). The segments of film obtained in February 2012 consist of a very short segment depicting the plaintiff outside a house on 4 February and a longer segment of film obtained on 7 February over about two hours mostly showing the plaintiff shopping alone.
140 On 23 December 2011 the plaintiff alighted from the passenger side of the vehicle and at about 9.25 am she entered a shopping centre accompanied by her other family members. From about 9.40 am the plaintiff was seen pushing a trolley into which her grandson had climbed. At approximately 10.43 am the plaintiff pushed the trolley to a vehicle in the car park before returning the trolley. She entered the passenger seat of vehicle. At approximately 10.55 am the plaintiff was seen exiting the vehicle in what I observed to be a slow and careful fashion, prior to walking into a shop. At approximately 12.13 pm the plaintiff was filmed loading shopping (groceries) into the boot of a car with her son standing by. There is also film at approximately 12.33pm of the plaintiff carrying plastic bags in her left hand with the younger boy holding her right hand.
141 The film obtained on 7 February 2012 depicted the plaintiff dropping-off a child at school. At about 8.29 am she re-entered her vehicle in a slow fashion and drove to a shopping centre, from which the plaintiff subsequently exited carrying numerous bags in her left hand. She bent and reached to place these in her vehicle. At about 9.04 am the plaintiff was seen parking her vehicle and browsing/shopping in the shopping centre until at about 10.33am when she returned to her vehicle with a trolley laden with bags of groceries. These bags of groceries were taken from the trolley and loaded by the plaintiff into the vehicle (this involved various lifting, bending, twisting and reaching movements) prior to returning the trolley and doing some further shopping.
142 By and large over the period of each film the plaintiff appeared to move about freely (and at times quickly) with no obvious sign of restriction or disability. This is not to say that there were not times, as already described, at which the plaintiff appeared to move out of her vehicle carefully or, as Dr Oi noted, the plaintiff appeared to use her arms rather than her back when she loaded groceries into her vehicle on 7 February 2012. However, as Dr Oi also agreed on this occasion the plaintiff’s range of movement “was certainly a lot better than” demonstrated during the doctor’s last formal examination (to about 10 degrees).[135]
[135] TN 87
143 Under cross-examination the plaintiff agreed that the film depicted her activities “on a normal day.” However, the plaintiff:
· rejected the suggestion that she was not seen limping. In short, she claimed that, if viewed properly, the film showed her limping (“At times I do” and “sometimes”) and asserted that she had not been pushing the trolley, rather she was limping and had been using it to lean on.[136] I reviewed the film prior to finalising my reasons for judgment. Suffice to say I did not, and Dr Oi, who also viewed the film could not identify (“It's hard to say”[137]), any portion of the film in which the plaintiff was limping. If I am wrong in my interpretation of the plaintiff's gait recorded in the film it remains the case that any variation in this was at best nominal.
[136] TN 111-112
[137]TN 87
· Asserted that most of the time “they”, meaning her son and children helped her shop. I formed the view that the plaintiff had sought to avoid the implications of the film when, after it was suggested that on 23 December she had unloaded the bags from the trolley (unassisted by her son who was standing next to her), she claimed that her daughter had assisted her.[138]
· When faced with the suggestion that bending and loading bags into her vehicle on 7 February had not caused her pain stated: “Yes it had”.[139] If she did experience this whilst performing these activities I was unable to discern any outward expression of pain. In effect the plaintiff said that she could not wait for other family members to help her and, as a result she “suffered the consequences later, and I do take a lot of medication.”[140]
· Denied the suggestion that she presented as depicted in the film most of the time, stating: “No, I’ve got worse days than others.”[141]
[138] TN 109-110
[139] Ibid
[140] TN 111
[141] TN 112
144 Of course, the film taken over two discrete periods, by itself, is not decisive of this application. The contrast between the film and the plaintiff's presentation on other occasions does however lend weight to the defendants’ submission that non-organic factors are probably contributing to the physical consequences of any work-related symptomatic spondylosis.
The role of non-organic factors
145 The defendants submitted that due to non-organic factors (“so much emotional overlay, so much functional responses”[142]) in this application the plaintiff had failed to disentangle the physical consequences of any compensable injury.
[142] TN 142
146 I have accepted that with the passage of time the plaintiff has presented with symptoms and behaviour which are likely non-organic in origin. This much is clear from the matters noted by the medical practitioners since it least early 2009.
147 However, no doubt influenced by the evidence of most of the medical practitioners, the defendants did not allege that the plaintiff had consciously exaggerated her presentation, although, as some of the observations made by me demonstrate, some aspects of the plaintiff’s evidence at hearing were unsatisfactory. Nevertheless, the preponderance of medical opinion indicates that the plaintiff suffered an aggravation injury to an already degenerate lumbar spine as a result of her employment with the first defendant, and in particular, the incident on 18 May 2007. Moreover, despite some earlier opinion to the contrary, the most recent specialist opinion and radiology and the opinion of the plaintiff’s treating general practitioner (along with the clinical records kept by the medical centre) support a finding that this condition probably has not fully resolved and is unlikely to resolve in the foreseeable future.
148 Based on all of the evidence I was also satisfied that additional impairment of the plaintiff’s lumbar spine, one consequence of which is that the plaintiff can no longer engage in unrestricted employment activities, is probably permanent.
149 None of the medical practitioners have recommended surgery at the present time or in the future, rather the plaintiff’s treatment continues to be conservative in nature and involves in the main ongoing medication for pain relief and avoidance of activities which aggravate her condition.
Has the Plaintiff retained a work capacity for suitable employment which exceeds the statutory threshold?
150 It is convenient to deal with this aspect of the application first. I have already summarised the statutory requirements in respect to obtaining leave to recover damages for loss of earning capacity. Based on the agreed without injury earnings figure the plaintiff was required to establish a permanent loss of earning capacity productive of financial loss of 40% or more of this figure of $28,089 gross per annum.
151 In this application, where the plaintiff clearly has a residual capacity (this was effectively conceded in her counsel's closing[143]) she was required to satisfy the Court that if exercised this would not result in her earning more than 60% (on my calculation – $16,853.40) of the agreed figure.
[143] TN 216
152 The plaintiff, in her evidence, gave a very clear impression that she was someone who had wanted to work. That, in part, was her explanation for continuing to work from 2009-2011. She continued to work, despite her pain and she has since unsuccessfully applied for jobs such as check-in work with Virgin Blue, which the plaintiff agreed she could probably manage.[144]
[144] TN 51
153 In the two years until she was asked to perform sales duties which exceeded the restrictions placed on her physical working activities, the plaintiff appears to have sustained a return to her pre-injury duties as a Quality Assurance Officer. In fact, the medical evidence and the plaintiff's evidence largely support a finding that the plaintiff has a residual capacity for sedentary, part-time employment (that is employment subject to the restrictions I have mentioned throughout), including the quality assurance work for which she is qualified.
154 However, as the defendants correctly submitted, the real issue for determination was the extent of the plaintiff's working capacity. The defendants also submitted that the plaintiff’s previous quality assurance work, when properly understood, was extremely light and fell well within all the restrictions recommended by most of the doctors.[145]
[145] TN 157
155 On behalf of the plaintiff it was submitted that she was “very close to totally incapacitated” for work and that in the period prior to cessation of her employment in 2011 her hours of work were limited to 10 to 12 or to 15 hours per week paid, at the rate of $20 per hour.[146] However, in this application as far back as 2009 suitable employment was identified, including the plaintiff's pre-injury employment, with average gross weekly income paid at rates exceeding $20 per hour.
[146] TN 209 and 216
156 In his report submitted in November 2011 Dr Castle limited the plaintiff's working hours to no more than 15 hours per week. However, Dr Oi, previously addressed this question in a letter to the plaintiff's solicitors dated 15 September 2011 where she advised, among other things, that the maximum hours “would possibly be 18 hours”.[147] Dr Oi confirmed this at hearing, as well as her advice that the positions described in the vocational assessment dated 17 July 2009 represented suitable job options for the plaintiff. In other words, subject to ongoing restrictions on her physical activities, Dr Oi believed that the plaintiff was fit to return to sedentary or office-type work. After the various quality assurance duties were described for her, the doctor nevertheless rejected any suggestion that the plaintiff could work full-time (“… I mean, it sounds as what you are describing is what was detailed at her modified duties this, and she is certainly capable of doing that for a limited number of hours, weeks, I said 15 to 18 hours a week (sic)”[148]).
[147] Exhibit P3, 31
[148] TN 89
157 According to the defendants’ calculations (which were not challenged), if the plaintiff worked in the positions described in the vocational assessment report dated 17 July 2009 for 15 hours or 18 hours per week she could earn the following amounts:
| Job option | 15 hrs pw | 18 hrs pw |
| General administration clerk | $17,550 | $21,060 |
| Sales clerk | $16,913.00 | $20,296.00 |
| Dispatch clerk | $20,115.00 | $24,139.00 |
| Customer service officer | $18,043.00 | $21,651.00 |
| Quality assurance officer | $19,438.00 | $23.326.00 |
158 The defendants submitted that, even at 15 hours per week, all of the above options took the plaintiff over the 60:40 ratio of the without injury earnings figure, reflecting as it did, her highest gross earnings in the three years preceding the injury.[149]
[149] TN 179.
159 Based on all of the evidence, and allowing for the likely impact of non-organic factors in this application, the plaintiff failed to satisfy me that she did not have a physical capacity for suitable employment which if exercised would not result in her earning more than 60% of her pre-injury earnings. This finding, however, does not prevent the plaintiff from relying on her likely permanent loss of earning capacity to be employed other than in work classified as sedentary or light employment, as one of a number of factors relevant to the determination of whether, when taken as a whole, her pain and suffering and loss of enjoyment of life consequences are serious.
The pain and suffering consequences alleged
160 I now turn to consider the further application. The defendants contested that the pain and suffering consequences experienced by the plaintiff were more than significant or marked, or at least very considerable.
161 The plaintiff’s pain and suffering consequences were in the main set out in her affidavits.[150] In her supplementary affidavit the plaintiff largely up-dated and re-affirmed her earlier affidavit evidence. In summary the consequences of physical injury include:
[150] Exhibit P3, 8 [11]-[15] and 12, [6]-[8]
· Pain. The plaintiff deposed that she continued to experience “pain all the time, in the bottom of my back, and also some pain and numbness in my left leg. My right leg is not bad; it is just a little bit weak at times. I have trouble sleeping. I get very uncomfortable and wake frequently. Based on the radiology and the most recent medical evidence, despite the presence of functional factors the plaintiff is clearly susceptible to activity-related flare-ups in pain which likely include some referred pain affecting one or both lower limbs.
· Domestic and recreational activities. The plaintiff deposed that she relied on her husband and sons for help at home and at hearing said that she required assistance from her son to shop. Allowing for the recent medical, evidence I think it reasonable to accept, as the doctors have, that the plaintiff’s domestic and recreational activities are all impacted by ongoing symptomatic lumbar spondylosis. The fact that the plaintiff required medical treatment in October 2011 after trying to vacuum is a clear indication that the plaintiff has kept trying to run her home even though she is probably no longer able to perform unrestricted domestic or, for that matter, undertake unrestricted recreational activities (she spoke of no longer being able to ten-pin bowl and only rarely being able to cake decorate) or drive longer distances. For a women who still has a young family to raise and a home to run the impact on the plaintiff’s functional capacity in her domestic setting alone is surely a significant consequence for the foreseeable future.
· Treatment and medication. The plaintiff deposed (her evidence in this regard finds support in the general practitioner’s records and evidence) that having stopped taking Oxynorm due to nausea, she requires and continues to take strong painkilling medications (“largely Tramal and ….Mersyndol”).
· Personal relationships. The plaintiff deposed that her condition had affected the physical side of her relationship with her husband and, inasmuch as her physical capacity continues to be restricted, I consider it reasonable to accept that this has also impacted the extent to which the plaintiff is able to share in her children’s activities.
· Restriction on her employment capacity. I have already indicated that this consequence remains a relevant consideration.
162 In conclusion, when considered as a whole, the pain and suffering consequences of physical impairment for this plaintiff when judged by comparison with other cases in the range of possible impairments are properly described as more than “significant” or “marked” and as “at least very considerable.”
Orders
163 I propose to make an order granting leave to the plaintiff to institute common law proceedings against the defendants in respect to pain and suffering damages only for injury suffered to her lumbar spine in the course of her employment with the first defendant, in particular on or about 18 May 2007.
- - -
Certificate
I certify that these 53 pages are a true copy of the reasons for decision of Her Honour Judge Millane delivered on 29 June 2012.
Dated: 29 June 2012
Hannah Christensen
Acting Associate to Her Honour Judge Millane
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