Dahlenburg v West Wimmera Health Service

[2023] VCC 138

IN THE COUNTY COURT OF VICTORIA

AT Warrnambool

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No.  CI-22-01474

ALISON MARLENE DAHLENBURG	Plaintiff
v
WEST WIMMERA HEALTH SERVICE	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Warrnambool
DATE OF HEARING:	16 and 17 January 2023
DATE OF JUDGMENT:	14 February 2023 (via Zoom)
CASE MAY BE CITED AS:	Dahlenburg v West Wimmera Health Service
MEDIUM NEUTRAL CITATION:	[2023] VCC 138

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – injury to spine –– pain and suffering – loss of earning capacity

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335(2)(d)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden           Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181

Judgment:                 Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Brett KC with Mr G Pierorazio	Stringer Clark
For the Defendant	Mr R H Stanley with Mr T Storey	TG Legal & Technology

HER HONOUR:

1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) in relation to an injury suffered by the plaintiff while working for the defendant on 18 August 2014 (“the said date”).

2The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:

“(a)    permanent serious impairment or loss of a body function.”

3The relevant body function is the lumbar spine. 

4Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

5The impairment of body function must be permanent, in the sense it is likely to continue into the foreseeable future.

6Under the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described (at the date of the hearing) as being “more than significant or marked” and as being “at least very considerable”.

7I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

8Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

9In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

10Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

11Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

12I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Haden Engineering Pty Ltd v McKinnon[2] in reaching my conclusions.

[1] (2005) 14 VR 622

[2] (2010) 31 VR 1

13The plaintiff swore two affidavits and was cross-examined.  Her parents, Marlene and Roger Dahlenburg, swore affidavits on 11 January 2023.  Also in evidence were medical reports and other material.  I have read all the tendered material.

14Range was in issue, but not causation.[3]  In terms of economic loss, the defendant’s case was that the plaintiff was currently not working at her full capacity for reasons other than the incident injury.[4]

[3]Transcript (“T”) 4; Mr Buzzard’s view that any work relationship has ceased was not relied upon

[4]        T4

The Plaintiff’s evidence

15The plaintiff is presently aged thirty-four, having been born in July 1988.  Her son, Jed, aged five, was born in December 2017. 

16After finishing Year 12, the plaintiff studied for and obtained a nursing degree at the Ballarat University between 2007 and 2009.  She then worked as a nurse in 2010 in Hamilton, and between 2011 and 2012, in the Ocean to Outback Program in Western Australia.

17On 1 October 2012, she commenced employment with the defendant as a district nurse and registered nurse on the ward, working up to seventy-two hours a fortnight, earning about $1,500 gross per week.

18In 2014, she commenced a Post-Graduate Certificate in Rural and Remote at the University of Southern Queensland, but was unable to complete it because of her back injury.

Pre-incident health

19The plaintiff had suffered from depression when she was eighteen, when her father died.  She was prescribed Fluoxetine for a year, with good recovery.  When about twenty, she had an exacerbation in the context of relationship difficulties.  She saw Ballarat Mental Health Services and was case managed briefly and treated with Zoloft for three years. 

20The plaintiff saw psychologist, Jenny Keir, because she wanted to have better relationships, but by the time she actually saw her, she was already injured in the incident.[5]  She did not know, when this treatment started in late 2014, if the focus was on past relationships, trauma and issues within her family.  However, she acknowledged that she wanted better relationships, and that there were some family issues which needed to be worked through at the time and some trauma that needed to be dealt with.  She also agreed there was some history of psychological upset in her family.[6]

[5]T45

[6]T46

21Before the said date, after hyperextending her right knee, the plaintiff had to give up netball, but was still able to go out dancing at the pub with friends and was attending pole dancing classes in Melbourne with friends as a fitness activity.  She was also able to walk the dogs a lot, which kept her fit, while living with her parents on their farm in Nhill (“the farm)”.

Work with the Defendant

22The plaintiff’s work involved nursing duties in various regions, including Nhill, Goroke and Kaniva.  She worked eight or nine shifts a fortnight.  Her duties at Goroke included working as a practice nurse and district nurse and in Kaniva, working at the public hospital in Emergency and acute care long stay in aged care wards.  In Kaniva, she was involved in feeding, showering, dressing and assisting patients with activities of daily living, dispensing medication, room management, phlebotomy, clinical rounds and helping doctors in rooms for emergency management of patients.

The incident

23On the said date, the plaintiff suffered injury at a patient’s home while manoeuvring him in a wheelchair to get him into the shower (“the incident”).

24After the incident, the plaintiff went back to work and reported the incident.  She continued to work, but the pain worsened, and she end up ceasing work on 25 August 2014.

25She was sent for a CT scan by her general practitioner (“GP”), Dr Anachuna, at Rural Doctors in Nhill (“Nhill”), previously known as Tristar.  This was carried out on 26 August 2014.  She was prescribed Tramadol, Celebrex, Lyrica and Valium.

26Her claim for compensation was accepted.

27She was referred to neurosurgeon, Dr Caroline Tan, who organised an MRI scan, performed on 1 October 2014.  She last saw Dr Tan in August 2015.[7] 

[7]T8

28She started seeing physiotherapist, Paoline Li, at Super Spine in late October 2014.  The following month, she saw physiotherapist, Shaun Casey, at Horsham, as she was continuing to suffer lower back and right leg pain.

29The plaintiff had a further MRI scan on 30 March 2015.  The finding on that scan, that the disc bulge had receded, did not really give her a feeling of comfort, because she was still in pain.[8] 

[8]T8

30She denied she did not have injections suggested by Ms Tan, because she had been told by her doctors she was on a healing course and the MRI scan was good.[9]  She did not have the injections because she was not convinced they were going to help.  She was sure she talked to her doctors and physiotherapist about this proposed treatment.[10] 

[9]T8

[10]T7

31The injections were a mixture of sugar and glucose.  In theory, that would bind the joint so it could not move.  She did not like that as a treatment option.  She was a bit unsure of it because it was permanent and “it was not guaranteed it would fix anything.”[11] 

[11]T54

Return to work

32The plaintiff eventually managed to get back to work with the defendant in about February 2015, initially on reduced hours and restricted to hospital-based duties, restricted to patient care, but did not return to district nursing.  She was able to achieve up to six hours a day, rather than the eight, as previously, but was not able to attend the same number of days per fortnight as before.  However, she felt she was being watched and scrutinised and pressured to go back to full-time work. 

33During that time, her treatment including swimming, Pilates, massage and home exercise.  She was taking Tramadol, Valium, Panadol and Nurofen for pain relief, as well as the antidepressant, Lexapro.

34The plaintiff’s psychological state worsened and, in particular, she had a meeting at work on 28 May 2015 (“the meeting”) with respect to her absence on 8 May 2015.  That day, she had been provided with a medical certificate by her GP, after having woken that morning with a cold and urinary tract infection.  She advised the hospital she would not be able to work due to illness.  Later that day, although unwell, she attended the funeral of a work colleague who died suddenly at work.  When she returned to work the next shift, she brought in a medical certificate. 

35At the meeting, she was told, if she was sick, she should have been in bed and that her behaviour was “fraudulent”.  This event confirmed her suspicions that co-workers and supervisors did not trust her and were scrutinising her.

36She agreed that the suggestion her conduct was “fraudulent” led to a very rapid decline in her mental health, but she did not know if it was a trigger for her to see a psychiatrist.[12]  The attitude of some co-workers continued to belittle her and they challenged her as to the veracity of her accounts of things, suggesting she was lying, leading to a further decline in her mental health.[13] 

[12]T47; The plaintiff saw psychiatrist, Dr Harish Kalra, on 29 June 2015

[13]T49

37She continued to work three full days a week and one short day, but was struggling to keep this up, as she was feeling anxious and not supported at work.

38In about Easter 2016, she aggravated her back when trying to stop a dementia patient from falling.  The defendant felt she was at risk of re-injuring herself and required a clearance from her doctor.  She ended up producing that letter, which indicated she should be able to get back to work on normal duties by August.  However, the plaintiff heard nothing further from the defendant until it terminated her employment in September 2016.  She then received weekly payments until about June 2017.

39She agreed that in its March 2016 letter to her (“the defendant’s letter”), the defendant was advising it had made a decision to withdraw her modified duties at that stage, effectively to terminate her employment, and was seeking medical advice to see whether she would ever have the capacity to safely perform normal full duties.[14]

[14]        T30

40The defendant wanted a letter from the plaintiff’s doctor in that regard.[15]  She “imagined” her GP’s letter was the information the doctor was giving her at the time.  When asked whether she agreed with the doctor’s assessment of her capacity, she said, “I was probably - I imagine I was hopeful”.[16]

[15]T30

[16]T31

41She agreed that she would have continued working with the defendant had her employment had not been terminated.[17]  She was probably aggrieved they did not find work she could do.  They tried to make her go back to work that she was never able to do and did not move her into a different role that would have worked better.[18]

[17]         History on examination by Dr Schutz on 14 January 2022

[18]T32

42She could not say how she felt at the time of Dr Chinogara’s letter.  She thought, at that point, she would have just been exhausted.  She did not agree that letter could be described as “quite upbeat”.  Dr Chinogara was aware that she had struggled a lot with the work process.[19]

[19]T35

43When her employment was terminated, she was still a registered nurse on the ward.  She never managed to get back to full duties on her return to work.  She honestly could not remember what duties she was not doing, she just remembered she was “not up to scratch”.  Maybe she was still having to take breaks and could not do a full shift.  She did not think she could do full showers or any of the “real heavy stuff”.  She did not think she was working full time; it would have been four days a week back in March 2016.[20]  

[20]T32

44Before the incident, she would have been working a nine-hour fortnight, which was the maximum permanent part time.  After the incident, she did not think she ever got back to a nine-day fortnight.[21] 

[21]T33

45She did not cope very well in her final days with the defendant.  She did not think it was sustainable to continue doing that work for a long time.

46In around June 2017, the plaintiff attended Pain Matrix in Geelong with the intention of participating in a pain management program, but she had then fallen pregnant, and the program did not proceed. 

47Following cessation of weekly payments, the plaintiff received Centrelink benefits.

Work after leaving the Defendant

48Her first job was at the local pub, the Farmer’s Arms in Nhill.  She no longer works there.  She might have worked there in 2020, a little bit after COVID.  She worked for about four hours on a Monday, serving beer. 

49In April 2021, she managed to find work as a practice nurse at Nhill through her current GP, Dr Zamura Ahmad, whom she previously worked with at Kaniva Hospital.  Dr Ahmad was obviously aware of her ongoing back problem. 

50Nhill contacted the plaintiff out of the blue to work there.  “Head hunting” was Dr Horsley’s description.  The plaintiff worked Monday and Wednesday mornings and continues to do so.  When she started there, she was still working at the Farmer’s Arms on Monday afternoon/evening.[22] 

[22]T19

51As at December 2021, the plaintiff was working eight hours a week at Nhill, four hours on Monday and Wednesday preparing care plans, changing dressings and taking bloods, and performing ECGs.  There was no heavy lifting involved. 

52At the end of a Monday, her back “was not great”; however, she needed an income and was paying rent.  To that end, in late 2021, she secured work as a supervising charge nurse at Allambi, a 14 bed, low care, aged care facility in Dimboola, 30 minutes’ drive from her home.  The job was not hands on, but simply involved ensuring enrolled nurses were performing their jobs properly.  Working four casual hours on Tuesdays was the limit of her capacity. 

53In addition, she was the club nurse/trainer for a local football club, although not paid for that role.

54Working at the Farmer’s Arms, Nhill, and Allambi, she did not cope with that “great”.  She had a third day and then Friday and Sunday afterwards to rest.  She could not have worked more, that was her limit, “that was enough”.[23] 

[23]T57

55Because of her back, she had thought about changing her career and working perhaps as a marriage celebrant or a breast-feeding educator; however, she really enjoyed nursing and wanted to persist with it as long as she could.

56She then continued to suffer from ongoing back pain radiating down into her buttock, and sometimes her foot, and on occasion, she had a spasm.  Also, on occasion, her back felt like it locked up.  Her back pain continued to affect her ability to sleep, and it certainly impacted on her sex life.  Also, at the end of the day at work, she often felt she had to lie down and rest.

57Soon after the incident, she put on about 10 kilograms.  She lost a lot of weight after she had Jed, but it had now come back “with interest”, and she now weighed about 20 kilograms more than she did pre incident.

58While she was able to drive, 30 minutes was about her limit.  She found standing and sitting for long periods difficult and constantly needed to alternate, and wriggled about to find a comfortable position.  She was restricted in terms of any heavy lifting.

59Dr Ahmad was then her GP and she saw Dr Ronel Van Zyl at Family Health Care for chiropractic treatment about once a fortnight, which she was self-funding.  Also, when she could, she attended either Equip in Horsham or the West Wimmera Health Service for physiotherapy, which she also paid for.  Due to ongoing anxiety symptoms arising from her injury, she was seeing psychologist, Tammy Barber, about once a fortnight, paid through the NDIS. 

60The plaintiff treated her back pain with over-the-counter medication such as Panadol and Nurofen, although she occasionally took Panadeine Forte, and sometimes resorted to Diazepam as a muscle relaxant.  Otherwise, she applied heat packs on her back while at work and sometimes resorted to using a heated blanket.

61Because of her back, she had certainly not been able to resume social activities, like dancing with her friends at the pub or pole dancing.  She now tended to take her dog to places where she could take it off the lead and it could run around while the plaintiff toddled after her. 

62Jed was very active, and the plaintiff tried to do what she could with him, but that was not always easy.  As he grew older and bigger, she was finding it more difficult to get him in and out of the car.  If she had to carry him for a while, generally that would be by piggyback, as she had struggled to hold him in front for long. 

63She could no longer wear high heels, which she enjoyed wearing.  She found that getting changed frequently through the day was difficult and getting dressed once was enough.

64She parked the rubbish bin at home next to the high veranda so she could simply drop rubbish into it.  Vacuuming, mopping and washing the car was sometimes manageable, but she generally found she had to lie down and rest afterwards.  She had difficulty moving furniture around the house and had been unable to move two couches into the shed.

65Pre incident, she went to her parents’ farm and collected firewood, taking a trailer and loading it, and then unloading it at her place.  There was no way she could do that now and needed others to help her.

66She found long drives difficult, and if she had to drive to Melbourne, she generally had to find a place where she could have a massage, as her back it was stiff and sore.

67She could no longer go horse riding, an activity she previously enjoyed.

Current situation

Pain

68As at 6 December 2022,[24] she continued to experience back pain and sometimes right leg numbness.  That occasionally radiated into her hip, buttock, upper thigh and down her leg to her right foot.  At times, the pain was exacerbated by activity and stress levels.

[24]        Plaintiff’s second affidavit

69Her pain built up during the day, and by the time she lay down, she had difficulty sleeping.  Movement was also restricted throughout the night due to pain, which caused her back to be very stiff when she woke up.  The injury continued to impact and limit her sex life, in that sex caused lasting back pain for the next few days.

70She could have described her pain to the Medical Panel in August 2021 in the terms it reported, but she could not really remember, did not know, or guessed.  She really did not know.[25] While she generally agreed with the content of the Medical Panel’s report, she would not say the examination was pain free, but would say she was able to move.[26] 

[25]T13

[26]T16

71She agreed Dr Horsley, on examination in March 2022, reported her varying pain levels accurately and that at times she described experiencing pain like a “niggle”.[27] 

[27]T14

72While Mr Radley reported, when he saw her in November 2021, that she was able to sit for 90 minutes, she would have been wriggling a lot in the chair.[28] 

[28]T15

73She guessed what Mr Buzzard reported was correct in terms of her level of movement.[29]  Re-examination on 29 September 2022 with him was very brief, probably half-an-hour, more or less, just with him asking her if things had changed since last seen.  The examination, itself, was very quick.  He just told her to get on the bed.  He would lift her leg and say, “that did not hurt”, and she would say, “actually it does”.  He would go through, moving the other parts of her body and ask the same question and she would give the same answer – “He just carried on and then it was done”.[30]

[29]T15

[30]T59

Current work

74She has continued to work as a practice nurse at Nhill, rostered on eight hours a week on average, but working sometimes more or less hours.  Her job involves preparing care plans, changing dressings, and taking bloods and performing ECGs, and preparing vaccinations.[31] 

[31]T21

75She no longer worked at the Farmers Arms Hotel.  She has continued at Allambi as a registered nurse, working four-hour shifts each week, supervising the Division 2 Nurses and PCAs and carrying out regulatory assessments.  She strictly avoided the more intensive manual forms of work, such as making beds, using lifters and showering patients.  She still did some wound treatment.

76Her work at Allambi does not involve duties as a PCA.  She reviews wounds as a registered nurse and changes dressings.  She also takes phone messages.  She guessed it was a lot of paperwork and supervision.[32]

[32]        T21

77She enjoys her work at Allambi and at Nhill.[33]  Sometimes she might have to stay a bit longer during a shift at both jobs.[34] 

[33]T22

[34]T23

Current treatment

78She presently attends Dr Ahmad at Nhill where she has been a patient since 2002.[35]

[35]T9

79She accepted she had not frequently complained of back pain when she attended Nhill over the last five years when told the clinical notes from November 2017 to August 2022, contained six entries where her back was mentioned when there were numerous attendances for other ailments.  She denied this was the case because her back was not problematic, and she did not have sufficient pain to warrant mentioning it.  She did not need to tell her doctor about her pain, she was managing it herself with over-the-counter Panadol and Nurofen, and then Panadeine Forte, or Valium, if there was a flare-up.   

80Her employer at Nhill is able to observe her at work.  Outside painkillers, which she asked for when needed at the time, she did not understand there was any further treatment they could give her at Nhill.[36] 

[36]T55

81She went to a doctor to get stronger painkillers while doing the football training role at Nhill because her back went into spasm.[37]

[37]T26

Current medication

82She continues to take Panadol and Nurofen fairly regularly for pain management, probably together two or three times a week, almost always towards the end of the day.  Occasionally, she takes Diazepam if her back is very sore, which would typically happen if she tried to do too much physically during the day.

83She probably obtained her last prescription from Dr Wang, after she had a back spasm.  It is possible the last prescription prior to that would have been in January 2022.  She denied, on that basis, she had been taking Valium very infrequently.[38]  She could not remember not mentioning to the Medical Panel in August 2021 that she was taking Valium.[39] 

[38]T11

[39]T12

Consequences

84A cleaner comes once a fortnight and helps the plaintiff immensely.  Post incident, the plaintiff had found it harder to stay on top of housework, which she could not do continuously without aggravating her back pain.  She had found she got a lot less done around the house because of her need to take repeated and extended breaks, so she only aimed to keep two rooms clean at one time, but things had improved since getting help. 

85She agreed her daily activities were as Dr Schutz described.  While he noted that she kept the house generally tidy and wiped the benches, the house was pretty messy.  She can use a stick vacuum for small areas.[40]

[40]T28

86Her psychologist, Tammy, arranged for NDIS to provide her with a cleaner because of her anxiety.[41] 

[41]T49

87Problems with driving continue and the plaintiff needs a massage after driving.  She tends to get her mother to drive long distance trips coming up.  After about 30 minutes of driving, the plaintiff starts to notice very significant soreness.

88She now weighs 85 kilograms, much more than when she swore her earlier affidavit.  She tried to get some help from a personal trainer, but found it tended to aggravate her back pain, so she now does exercise physiotherapy sessions where she can do light Pilates instead.

89She remains unable to do her hobbies.  No horse riding, pole dancing or netball.  It is difficult to imagine she will be able to pick these up in the future, because her back has not really improved. 

90Jed is now five and getting much bigger, and still wants to play just as much, but she has to restrict her interaction with him.  She still avoids lifting firewood and relies on family in that regard.

91She still goes camping and hurt her knee when camping, probably Easter last year.  She has a regular camping crew she goes away with.[42]  She still takes the dog for a walk.[43] 

[42]T28

[43]T29

92In about November 2022, after dancing at a wedding, probably after drinking too much, her back was very sore, and she needed to take painkillers daily to manage her pain for a week or so afterwards.

93She does the training role at the football club because it makes her happy.  She is miserable because she is in pain a lot of the time and doing something for her community and getting to mix with her friends, and making friends, is something that brings her joy.[44] 

[44]T42

94She was a trainer initially, originally at Nhill Tigers, and later at Minyip Murtoa.  At Nhill Tigers, back in 2021, she did Tuesday and Thursday training and Saturday game day.  However, at Minyip, she does not go to training and does not attend every Saturday.   In theory, it is part of her role to rush out with a stretcher if a player is injured.[45]

[45]T24

95She does not really attend the Minyip home games when they are playing away.  “Probably” her move to Minyip did not go successfully and she does not think she will do it again.[46]  The football club work is not that strenuous, but it was strenuous for her.[47] 

[46]T25

[47]T57

Work future  

96She agreed generally with Mr Radley’s description that she is of high average intelligence and would say she is bright, having done Year 12 and a nursing bachelor at Ballarat University, with some further study and courses.[48]  She agreed with his description of her good computer skills and that there had been talk of alternative employment vocations that would suit those skills.[49]

[48]T35

[49]        T36

97As Dr Horsley reported, the plaintiff was considering doing a diploma in wound management, which was an option for a different career path and would involve being a wound nurse at a hospital.  She agreed that she was motivated and that updating her skills would be a good investment.[50]

[50]        T43

98She also agreed she had had other thoughts around teaching nursing at the local TAFE.[51]  Maybe, she did not know what she would be able to do, as she had not looked that far into it.  She would need to retrain to teach.[52] 

[51]T36

[52]T37

99When taken to her GP, Dr Wang’s most recent report, detailing she could probably return to study in various areas, the plaintiff agreed becoming a lactation consultant was an interest, but it takes a really long time to train.[53] 

[53]T37

100The plaintiff had not done anything to pursue these job options because she could not afford it.  Finances were a big part of holding her back.  Online courses are still expensive.  WorkCover would not pay for retraining, because she already had a bachelor’s degree.  She did not know Centrelink could provide any assistance in this regard.[54] 

[54]T38

101She agreed she looks after Jed “24/7”.[55]  She agreed it is a huge workload just managing him.[56]  She denied, with the responsibilities of looking after him, she now simply does not have the time to retrain.[57]  It was a possibility she would have more time for retraining once he was at school.[58] 

[55]T17

[56]T18

[57]T38

[58]        T39

102Jed attended kinder three days a week for five hours last year.  The plaintiff had her parents to look after him, and also childcare available at Nhill.[59]  When it was suggested she was only doing limited hours solely because of her responsibilities with Jed, she said she was asked to stay at work all the time to do extra hours, but she did not want to, it was too painful.[60]

[59]T39

[60]        T40

103If she was able to work more hours, she could ask her mother to mind Jed.  She could pay her to mind him if she was back nursing.  The plaintiff has not done so because she cannot work more hours.

104Jed came with her to work at the Farmer’s Arms and also at Allambi.  He had a nice time at the home and his presence enriched the resident’s lives.  She was really lucky she could bring him to work, and she was able do the hours she could manage.[61] 

[61]T40

105She disagreed the limited hours she currently works are chosen by her because they suit the demands that are on her life and have nothing to do with back pain.  She disagreed that, when Jed is at school, she would be able to work thirty-five to thirty-eight hours a week.[62] 

[62]T41

106She could not do more work at Nhill because, being on her feet that long, bending over to take blood, “it all just accumulated”.  She agreed it was a job that did not require heavy lifting and that her employer understood her condition.  When it was suggested as she only had niggling pain, she could do more than four hours a day, she responded, “except I am in pain”.[63]

[63]T41

107She has problems taking bloods because it makes her back sore being bent over and stuck in one spot, waiting for the vacutainer to fill.[64]

[64]T58

108She could not work full time at Allambi because “it accumulates, the pain accumulates”.  She does not assist the PCAs at work.  She just gives them advice, not actual assistance in handling patients and lifting them.[65] 

[65]T58

109Her parents live about 13 kilometres away, and her mother would be able to care for Jed if she required her to.  In the perfect world, if she had not had the injury, the plaintiff would have done nightshift while Jed was asleep at her mother’s and then, having done a full-time nightshift, she would be able to see him in the day.  She would have earned a lot of money if she was doing nightshift at the hospital, or even the nursing home.[66] 

[66]T56

Psychological condition

110The plaintiff was seeing psychologist, Tammy Barber, until recently.  She is not taking antidepressant medication at the moment.[67]

[67]T49

111She agreed with Dr Schutz’s history that she noticed that stress could worsen her pain, and agreed it was her experience that when she became stressed she experienced more pain, however, a lot of her stressors were in the past.[68] 

[68]T52

Lay evidence

112The plaintiff’s mother, Marlene, swore an affidavit on 11 January 2023, in which she confirmed the plaintiff was an active young woman before the incident, and that she had had significant problems thereafter.   

113The plaintiff grew up on the farm and was an active, sporty and farm-loving girl.  After her studies, she returned to live on the farm.  She engaged in a lot of sporting and socialising activities, including netball, motorbike riding and pole dancing.  She travelled regularly on weekends to Horsham and Melbourne for pole dancing and went to Western Australia to attend a pole dance camp.

114The plaintiff regularly helped out with physical work on the farm with the sheep.

115At the time of the incident, the plaintiff was living part time on the farm and part time at her house in town.  She stayed full time at the farm afterwards.  She then helped the plaintiff with driving to appointments and treatment.

116The plaintiff was initially quite good, as she was hopeful she would recover quickly with treatment, but she never did.  This situation had a severe impact on her mental health.

117Since the incident, she has not seen the plaintiff participate in the various physical activities she did before. 

118The plaintiff had returned to work doing four-hour shifts at a time, but after work she believed that the plaintiff had to lie down to rest.  The plaintiff now lived at her own place full time but could not mow the lawn or do heavy housekeeping tasks, and had to have help with mowing and cleaning.  She had had to modify her activities and was restricted to doing any activities at a moderate pace.   Even after walking with Jed, she had seen the plaintiff have to lie down.

119The plaintiff’s father, Roger, swore an affidavit in similar terms.

120He confirmed the plaintiff’s active sporting and social life before the incident and her love of the farm.  She had worked locally after she had qualified as a registered nurse.  Being a district nurse was her dream job and she thrived.

121The plaintiff was a changed person after the injury.  Her limited mobility, constant pain and stress destroyed her, and she went into a shell and was not happy and outgoing anymore.  She could not do many of the things that she took for granted before the incident, such as driving, horse riding and motorbike riding, and helping out on the farm.

122The plaintiff managed to return to work and some driving.  When asked by the defendant to drive to Kaniva, 30 minutes away, the plaintiff was visibly in pain and tears when she arrived home from work.

123He continued to see the plaintiff at least a couple of times a week after she moved out, and helped her with tasks around the home, such as mowing the lawn and difficult chores, and had otherwise arranged for someone to help her with tasks.

124He and his wife see the plaintiff and Jed all the time.  The plaintiff has raised Jed magnificently and he is a polite, loving, smart little boy who is very active.  Unfortunately, the plaintiff is limited in what she can do with him, and their interactions are confined pretty much to board games.

125His wife is very much hands on in helping the plaintiff with Jed and with managing many aspects of her life, as the plaintiff is limited in what she can do herself.

126Before the incident, the plaintiff was responsible for her own horse which she rode regularly.  After the incident, she was unable to ride anymore without pain.  She is no longer able to go motorbike riding with a friend out into the scrub riding in the Little National Desert Park.

127The plaintiff’s ability to undertake physical work at the farm had really ceased post incident.  One attempt to actively push and manoeuvre sheep to get them moving through the race on the farm was too hard and risky, so the plaintiff decided not to do that task anymore.  He now has to load and deliver firewood to her.

The Plaintiff’s medical evidence

Treaters

Dr Tan, consultant neurosurgeon

128Dr Tan first saw the plaintiff in September 2014 on referral from Nhill. 

129Dr Tan then noted on CT lumbar scan, the plaintiff had normal lordosis and a mild L4-5 disc bulge, but no obvious nerve impingement seen.  She had a positive straight leg test on the left.  Neurological examination was normal.  An MRI scan was suggested.

130In August 2015, Dr Tan had been treating the plaintiff in close collaboration with specialist musculoskeletal physiotherapist, Ms Li, since October 2014.  They had been monitoring her over that time and had come to the conclusion that she had strong features of right sacroiliac joint instability, and that was hindering her recovery and return to preinjury duties. 

131The recommended treatment was prolotherapy.[69] Typically, multiple treatment sessions were required, and often up to six.  She sought funding from the insurer to accept charges for up to six sessions of prolotherapy to the right sacroiliac joint.

[69]        An injection-based treatment used in chronic musculoskeletal conditions

Ms Li, Musculoskeletal physiotherapist

132Ms Li saw the plaintiff from November 2014, during 2015. 

133When first seen in November 2014, Ms Li thought the plaintiff suffered severe low back pain on the right lower lumbar spine, with radiating pain to the right posterior thigh and calf.  Sitting, as well as standing, aggravated her pain whilst gentle movement alleviated her lower limb pain, and pain flared up following passive loading of the lumbar spine.  She then recommended a further fifteen sessions of physiotherapy over the following three months.

134As at July 2015, Ms Li thought the plaintiff’s symptoms were consistent with sacroiliac joint dysfunction.  She was progressing with more function and less lower limb pain over time, but after returning to modified duties, found symptoms started again with aggravation in buttock pain travelling down the posterolateral thigh and down occasionally into the ankle.  She thought the plaintiff would continue to benefit from a gentle strengthening program to maintain her function and to be able to do modified duties at work. 

Dr Chinogara – Nhill

135Dr Chinogara first reported in December 2015.  She then thought there was a predicament in that the treatment schedule and the return to work plan were not tying in.  The plaintiff then had fifteen hours of rehabilitation medicine, ten hours of travelling and twenty-five hours per week/three full working days.

136The plaintiff was struggling to keep up this workload which also included a short day.  She was constantly anxious and did not feel supported by her current WorkCover arrangement.  The plaintiff had been a valuable asset to the community and a little more patience would bring her back to her pre-injury duties. 

137In her 18 April 2016 report, Dr Chinogara noted that the plaintiff had been working four full days a week and was struggling to keep this up.  She had been having exacerbations of her back pain on and off, related to her work injury.  She had been able to fall back on her swimming, Pilates, massage and home exercise to counter the setbacks. 

138A return to work plan should be centred around what the plaintiff could currently do, and rehabilitation should be allowed to continue as per the specialist recommendations if the plaintiff was to get better.

139The plaintiff was having a lot of related psychological stress and was deteriorating mentally, and Dr Kalra had recommended monthly visits.  The plaintiff had been taking quite a lot of sick leave related to stress-related ailments like migraines, mouth ulcers, diarrhoea and urinary tract infections.  She was constantly anxious and did not feel supported under the current WorkCover arrangement. 

140The plaintiff had been a valuable asset to the community, and Dr Chinogara felt a little more time and patience would bring her back to pre-injury duties.  She asked that her letter be considered favourably as good nurses were scarce in this part of rural Victoria.  She suggested the plaintiff having five-minute breaks after every 55 minutes and not lifting heavier than 20 kilograms.

141She answered “None” in response to the question “What restrictions may apply to future work capacity?” and stated that there was nothing which would prevent the plaintiff from returning to her pre-injury position.

142In her most recent report of September 2016, Dr Chinogara provided a summary of past and ongoing treatment, making further reference to the plaintiff’s mental issues and noting referral for pain management for a chronic pain syndrome.

143Dr Wang from Nhill reported in August 2022.

144The diagnosis was left L4-5 disc bulge 2014, SJT instability, ongoing chronic back pain and right leg pain.

145The plaintiff’s injury had resulted in her being unfit for pre-injury duties for the foreseeable future, because of the physical demands of her pre-injury duties as a nurse in hospital as she is unable to sit, stand, walk for extended periods, need to regularly change postural position.  She then worked only four hours per day on light duties and then had to lie down.

146The plaintiff could perform suitable employment and retrain for suitable employment.  She was then working four-hour shifts three days a week.  Her jobs allowed her freedom of movement between sitting, standing and walking and do not involve heavy lifting, pushing or pulling.

147The plaintiff could return to study in a more specialised area of nursing – Masters of Wound Management or lactation nurse.  The costs associated with retraining may pose issues due to the decrease in her finances since injury.

148Social, recreation and domestic activities had all been affected by her work injury. She had altered the way she does day-to-day tasks to fit around her back.

149She was unable to participate in previous hobbies including but not limited to horse riding, dancing and netball.  She had assistance with domestic tasks.  She described weighing up activities as “worth the pain” or ”not worth the pain”.  Her symptoms were likely to persist.   

Pain management

150Dr Chinogara referred the plaintiff to Barwon Health Pain Management on 28 August 2016 for incident-related back pain, which was there all the time, with exacerbations.  She noted that at the time the plaintiff could not manage four working days a week and would try and manage three days.[70] 

[70]        Post-dates her March 2016 letter to the defendant

Investigations

151A lumbar CT scan in August 2014 was reported to show at L4-5 mild central canal stenosis due to annular disc bulging.  It was concluded that there was mild L4-5 disc degeneration and mild central canal stenosis, no focal disc herniation or evidence of nerve root compression.

152Dr Tan organised an MRI scan of the lumbar spine in October 2014.  It was reported to show a broadbased disc bulge in the central, right paracentral and right foraminal region at L4-5 level as a result of compression on the anterior aspect of the thecal sac.  The disc came into contact with the right descending L5 nerve root with possible mild decompression.  There was no compression on S1 nerve roots.  It was noted that a CT-guided right epidural injection could be done in case of radicular pain.

153Following an x-ray of the sacroiliac joints in June 2015, it was reported that there was minimal degenerative change in bilateral sacroiliac joints with maintained joint spaces.  No periarticular sclerosis or erosion was seen.  The appearance of the sacrum was unremarkable. 

Psychiatric

154Jenny Keir, psychologist, reported in January 2016, having first seen the plaintiff in October 2014 for help with personal issues, seeing her weekly to fortnightly since.

155The diagnosis was Adjustment Disorder with Anxiety and Depression.  This condition had arisen as a result of the plaintiff’s work-related back injury.

156The plaintiff’s psychological condition would remit fully, provided her back injury and pain diminish sufficiently for her to be physically able to return to her full nursing role or some other satisfying profession.  From a psychological perspective, she had the capacity to perform suitable part-time employment, within the limits of her physical injury. 

157Consultant psychiatrist, Dr Kalra, saw the plaintiff on 29 June 2015, following a referral from Dr Chinogara for a specialist opinion and ongoing management. 

158The plaintiff was suffering from an Adjustment Disorder with Depressed Mood.  Her current symptomatology was directly a result of her physical injuries, complicated with difficulties with her employer and insurance companies.  Her psychiatric diagnosis was dependent on the course and outcome of her physical injuries related to back pain and associated restrictions.  From a psychological perspective, she had a current capacity for pre-injury duties. 

Medico-legal evidence

Mr Glenn Boyce, orthopaedic surgeon

159The plaintiff was examined by Mr Boyce in July 2021.  He was provided with the reports of the 2014 lumbar investigations and the May 2021 CT scan. 

160Following the incident, the plaintiff returned to hospital-based duties, including patient care, but did not return to district nursing.  She was able to achieve six hours per shift rather than eight and unable to attend the same number of days a fortnight and was limited in lifting and heavier duties.

161The plaintiff was then taking Diazepam, 5 milligrams per night, and Panadeine Forte occasionally or paracetamol or ibuprofen.  

162On examination, the plaintiff described the pain in the morning as one or two out of ten, increasing during the day to four out of ten, with pain in the evening at six out of ten.  She needed to lie down at the end of the day to relieve her pain, and getting to sleep was difficult.  The pain was central and in the right paravertebral muscles radiating into the buttock frequently but rarely radiating to the foot.  Pain flared with increased activity and prolonged postures.

163On examination, the plaintiff had no difficulty moving around the examination room or to and from the couch.  She demonstrated a normal gait.  There was normal alignment of the thoracolumbar spine.  There was no dysmetria or guarding.   There were no lower limb radiological signs to indicate radicular impingement.  Sensation was intact and muscle strength unaffected.  Straight leg raising was not painful.  Flexion was to 60 degrees, extension left and right, and lateral flexion to 20 degrees, and rotation bilaterally to 40 degrees.

164The diagnosis was a L4-5 broadbased disc bulge and exacerbation of sacroiliac joint instability.  The prognosis of a return to pre-injury state was poor and unlikely to occur.  The plaintiff was likely to continue to experience pain and functional limitation, given this had been present for a significant number of years, despite extensive non-surgical therapy.

165At that time, the plaintiff was then involved in further training and had returned to work as a nurse.  She reported her current ability was to perform a partial work day with a rest day following.  Employment allowing appropriate breaks and use of a sit/stand desk was suitable.

166The plaintiff then needed to lie down after four hours work, and felt further hours increased her pain.  Her current incapacity and limitations were likely to persist for the foreseeable future.

167The plaintiff’s capacity for physically strenuous work, prolonged standing or sitting, lifting and twisting activities was limited and that was likely to be ongoing indefinitely.  She was unable to return to pre-injury duties but had an ability to perform and had returned to suitable duties, part-time, including appropriate nursing duties that did not require heavy lifting or loading.

Dr Fish, occupational physician

168The plaintiff was first seen by Dr Fish in October 2021.  He had available the reports of the August 2014 lumbar CT scan and the March 2015 lumbar MRI scan. 

169The plaintiff then reported that her main pain was located into the right lower back, with radiation towards the right buttock.  She only occasionally suffered pain down the right leg.  Radiating pain to the right leg was aggravated by stress and prolonged sitting for more than thirty minutes.  She had morning stiffness in her back which resolved in around thirty minutes.

170The plaintiff was then working four hours a day on Mondays and Wednesdays as a practice nurse, and also four hours a week on a Tuesday as a charge nurse in a nursing home.  She had also done very light bar work in the past.

171The plaintiff was able to return to work in 2015 on a graduated return to work basis and, over the next year, achieved near full-time hours working eight hours a day, four days a week, although she was limited in what she could do, avoiding lifting and moving patients and performing any showering duties. 

172The plaintiff was currently taking Panadol and Nurofen occasionally, averaging two days a week.  Over the years, she had suffered ongoing anxiety and depression associated with adverse life events, and was placed on antidepressants at one stage but no longer took them.

173The plaintiff had a weekly cleaner supplied under NDIS because of a diagnosis of ADHD.

174Examination was over Zoom.  The plaintiff presented with a normal gait.  She  indicated that the site of her pain was just to the right of the midline in the lower back in the region of L4-5, with some radiation towards the right buttock and right anterior groin.  She displayed a fair range of spinal movement.  There appeared to be no muscular weakness or wasting.

175The right leg referred symptoms appeared to have largely resolved.  She still had some functional incapacity and had returned to part-time work. 

176The available examination findings and investigations suggested the presence of lumbar disc disease and facet joint arthropathy, which was likely to have been aggravated during the course of employment.  The picture was mixed as regards right sacroiliac joint dysfunction, and this was unable to be clearly diagnosed. 

177The plaintiff was suffering from an aggravation of lumbar disc degeneration and facet joint arthropathy with referred symptoms to the right lower extremity.  It was not clear whether she was also suffering from right sacroiliac joint dysfunction.  The results of investigations were mixed, although it was unlikely to be a significant factor with her current symptoms.

178The plaintiff also reported suffering from anxiety and depression due to her injuries.

179Her employment with the defendant was a significant contributing factor to the aggravation of lumbar disc degeneration and facet joint arthropathy. 

180She had no capacity to return to her previous district nursing role, having limitations, in that she was unable to sit or stand for long periods, could not drive for long periods, and would not perform any heavy lifting.  This would particularly preclude her from lifting and moving heavy patients, as was required with district nursing or in aged care residents.

181She did, however, maintain a capacity to perform employment as a practice nurse, phlebotomist or vaccinator.  Technically, she would be capable of work as a nurse educator and/or nurse researcher but, given her remote location, such work was unlikely to become available in the Nhill district and therefore he did not think these were realistic employment options.

182The plaintiff was capable of working up to fifteen hours per week, being five hours a day Monday, Wednesday and Friday.  It was likely that her capacity for such employment would continue at that level in the foreseeable future.

183She would require ongoing simple analgesia on an intermittent basis.  He would consider arranging for sacroiliac joint injections as a diagnostic procedure to exclude sacroiliac joint dysfunction.  He would not be in favour of any injection treatment to the sacroiliac joints as these usually provide only short-term improvement.

184The plaintiff was now unable to participate in her preferred sports activities, including netball and horse riding.  Socially, she was likely to be unable to participate as fully as she did in the past.  Given the duration of her symptoms, it was likely she would continue with the same or similar level of symptomatology and restrictions into the foreseeable future.

185On re-examination in November 2022, the plaintiff continued to have low back pain which radiated into her right buttock, right anterior and lateral thigh, and associated occasional tingling down to the right foot.  The tingling was not persistent and could last up to thirty minutes.

186Overall, the plaintiff said she was more mobile since she had changed to an exercise physiologist from her chiropractor.  She was taking the occasional Panadol, Panadeine Forte and/or Nurofen as required, and took Valium as required.

187On examination, there was normal lumbar lordosis and tenderness maximum at L4-5.  Lumbar movement was mildly restricted in all planes.  Straight leg raising of the right leg led to pain radiating down the leg to the great toe; however, the seated straight leg raise test was negative.  Lower extremity examination was normal.

188Again, the examination and investigation findings suggested the presence of lumbar disc disease and facet joint arthropathy.  There was no evidence of sacroiliac joint dysfunction. 

189The diagnosis was persistent axial pain with referred symptoms to the right leg but without clinical evidence or radiculopathy.

190The plaintiff’s back injury and symptoms prevented her from returning to her previous district nursing role and she had found suitable employment as a practice nurse.

191The plaintiff was unable to drive for long periods and cannot do any heavy lifting.  She could retrain as a phlebotomist or vaccinator, which would complement her role as a practice nurse.  Overall, she was capable of working up to fifteen or sixteen hours a week, with five hours a day on Mondays, Wednesday and Fridays, and it was unlikely her capacity has or will increase.  This incapacity was permanent.

192The plaintiff also had reduced social and domestic activities on the basis of her continued symptoms.  The prognosis was indeterminate, but likely to persist into the foreseeable future.

Dr Horsley, occupational physician

193The plaintiff was examined by Dr Horsley in March 2022. She had available a report of the 26 August 2014 lumbar CT scan.

194After the incident, the plaintiff eventually increased her hours to seventy-eight a fortnight but on alternate duties and had period off work.

195On examination, the plaintiff described ongoing back pain which was chronic at a level of one to two out of ten.  She described it as a “niggle”.  Depending upon the day and level of activity, the pain varied from three to four out of ten up to seven out of ten, and when it got to seven, she lay down.  The pain reduced back to three or four out of ten and then she could get on with the day.

196Her functional tolerances included walking for about thirty minutes, a static standing tolerance of five minutes, and a dynamic standing tolerance of about thirty minutes.  Her sitting tolerance, providing she was able to move in a chair, was up to an hour.

197The plaintiff experienced an acute flare-up intermittently and had two in the last year.

198On examination, the plaintiff presented in a straightforward manner.  There was a mild loss of lumbar lordosis, no specific tenderness on light touch palpitation in the lower lumbar spine or right buttock.  Forward flexion was to 90 degrees and extension to 30 degrees.  Right lateral flexion left, and right lateral rotation was limited at the end of the range of motion.

199The diagnosis was mechanical back pain and referred right leg pain.

200Given the length of time since the injury and the ongoing nature of symptoms, these were likely to persist, and the plaintiff continued to have reduced functional tolerances.

201At that stage, the plaintiff had returned to work, working on average sixteen hours a week, which included pulling beers at the local pub, working at the local medical practice and working as a registered nurse at an aged care facility giving out medication.

202When asked what she would do when her young son went to school, the plaintiff said she hoped to study and was quite interested in doing wound management.  She understood that to do that course she would start a master’s degree, which would cost in the vicinity of $30,000.  If she completed one year, she would get a graduate certificate.  If she completed two years, she would get a Diploma in Wound Management, and if she completed three years, a master’s degree.  She was interested in the graduate certificate which would cost about $10,000. 

203The plaintiff could not afford such a course now, but believed that this type of retraining and specialising would be most suitable.  Her other thoughts were around teaching nursing at the local TAFE.  Again, she would need to specialise and upgrade her qualifications.  Further vocational counselling was indicated.

204Noting the plaintiff was then only thirty-three, Dr Horsley thought an investment in her education and upgrading of skills would be a good investment, as she is a motivated young woman.

205Work had been a significant contributing factor with respect to the lumbar spine. 

206The necessary prudent work restrictions included avoiding repetitive overreaching, pushing and pulling, truncal rotation and static postures.  Good manual handling techniques were required and avoidance of repetitive bending and lifting, lifting items greater than 10 to 12 kilograms (except on an occasional basis), lifting items of up to 8 kilograms on a repetitive basis, and avoiding using any tools with a vibratory component.

207The plaintiff would need to access a sit/stand workstation if she was to return to the workforce in a more administrative-type role.  Her current roles allowed her to do this.  The plaintiff was interested in upgrading her degree with specialisation possibly in wound management or in teaching.  Both courses required funding, but she did not have the funds.  She was only thirty-three at the time of examination and would be a good candidate for support in this arena, and funding by the insurer should be considered.

208The plaintiff was then working sixteen hours a week and caring for her son.  She had increased her hours over the last few weeks, when another nurse was away, by four to eight hours a week, and found that that aggravated her back.

209When one took into account the manual handling required with caring for her son and the sixteen hours of work per week, the plaintiff was currently working at her capacity.

210The plaintiff’s NDIS plan allowed her to access home help on a Friday for two hours, which helped considerably with the heavier cleaning tasks.

211The plaintiff would benefit from the involvement of an occupational therapist to provide her with some general advice about manual handling of her child.

212The plaintiff was permanently unfit to return to her previous roles as a district nurse, bush nurse or Division 1 nurse in a public hospital environment.  The critical physical demands of patient management were now beyond her capacity. 

213The plaintiff was undertaking appropriate work as a registered nurse providing medication in an aged care setting, working in a medical practice as a registered nurse, and also working at the pub on a very quiet day.

214The plaintiff was keen to study and upgrade her skills to allow her to increase her earning capacity and possibly her hours once her son went to school.

215The plaintiff was currently working at capacity.  Her back injury had truncated her career path, noting that she was keen to upgrade her skills to move into less manual but nursing work.  That needed to be supported.

216Noting the vocational assessment report dated 21 July 2016 with identified suitable employment, Dr Horsley thought that the plaintiff had already returned to practice nursing, working as a registered nurse for eight hours a week and working as a registered nurse four hours a week, and had gone laterally to assist with pulling beers.  The plaintiff was keen to pursue the possibility of nurse educator, but was aware that that would require upgrading of skills, as would wound management.  Her capacity for work in any of these areas was then in the vicinity of sixteen hours a week, and she was currently caring for her four-year-old child.

217The plaintiff would have difficulty working as a pathology collector.  The static postures involved would be an issue.  With admissions clerk and medical receptionist roles, these would be a demotion, as the plaintiff is a Division 1 registered nurse.

218The injury had had a significant impact on the plaintiff’s career path, but she was interested in upgrading and retraining of skills to move into the appropriate area of nursing, taking into account her ongoing disability.

Mr Stephen Doig, orthopaedic surgeon

219Mr Doig examined the plaintiff on Zoom in May 2022.  He was aware of the 2014 lumbar investigations.

220The plaintiff then complained of ongoing low back pain which had now plateaued.  There was a constant background of low back pain, and it would occasionally radiate down to the right buttock and right leg.  There were occasional spasms, and she described some intermittent paraesthesia. 

221The plaintiff appeared to have flexion to about 70 degrees, extension to about 10 degrees, lateral flexion to roughly 20 degrees on each side, and rotation to roughly 30 degrees on each side.

222The diagnosis was one of disc injury to L4-5.

223The plaintiff was restricted in her physical duties with problems with hands-on work as a district nurse.  She was not able to do that work and therefore was significantly restricted in that type of employment, and it was likely that that would continue into the foreseeable future.

224The plaintiff returned to suitable employment in April 2021.  Prior to the injury, she was working twenty-two hours a week with the defendant and doing multiple extra shifts at the hospital to get up to almost full time.  As a consequence, she was back in suitable employment on a part-time basis and was then doing approximately twelve hours a week, which she may be able to increase, depending on whether she coped with that or not.

225The prognosis was somewhat guarded.  It was likely that the plaintiff was going to continue to have ongoing problems no matter what else was done.

Psychiatric

226The psychiatric medico-legal examinations are only relevant in terms of history and the cross-examination in relation thereto.

Dr Gregor Shutz, psychiatrist

227When examined by Dr Shutz in January 2022, the plaintiff reported that her pain had been better than in the first year.  It could be two to three out of ten, but it could increase depending on activity and could reach eight to nine out of ten.  She reported the pain was worse if she drove or sat for too long or stood for too long.  The pain was worse with repetitive movement.  She reported she noticed that stress could worsen her pain.  There was a cycle in which stress exacerbated her pain, and pain subsequently led to her feeling more stressed.

228The plaintiff was mainly independent with activities of daily living. 

229The plaintiff reported that she had been affected emotionally more by the way she was treated in the workplace other than her pain.  Her mood was, at worst, in about 2015 when she had suicidal thoughts, loss of interest and loss of enjoyment and motivation, was often tearful and was snappy.

230The most appropriate diagnosis subsequent to 2015 would be a moderate Adjustment Disorder with Anxious and Depressed Mood. 

231There was sufficient evidence of a psychiatric component to the plaintiff’s pain, best described as psychological factors affecting a general medical condition.  In particular, she indicated that stress was a common cause of pain.

232From a purely psychiatric perspective, the plaintiff maintained a capacity to work twenty-five to thirty hours a week in any role for which she had training and expertise, of which such training could be provided and within her physical restrictions.  She would have capacity to work part time in her pre-injury duties on the assumption that that was within her physical restrictions. 

Dr Michael Epstein, psychiatrist

233Dr Epstein examined the plaintiff in March 2022.

234From a diagnostic point of view, he thought she had a Chronic Adjustment Disorder with Anxiety and Depressed Mood.  Her quality of life had diminished, affecting her work capacity, relationships and recreational employment.

235Taking into account only her mental health issues, the plaintiff had the capacity to return to work as a registered nurse, and it was only her ongoing physical symptoms that prevented her resuming full duties and working full time because of pain and fatigue from her physical injuries.

236The plaintiff’s mental state had led to her becoming less sociable and she was also restricted because she was now a single mother.

Vocational evidence

237Psychologist, Bill Radley, prepared a vocational assessment report in November 2021.

238The plaintiff then reported she experienced moderate variable pain in her low back, moderate periodic pain in her right hip, buttock, thigh, calf and toes, moderate periodic pain in her left buttock, and pain in her upper back between the shoulder blades.  She reported the average intensity of her overall pain to be three; at worst four; at best one.

239The plaintiff was then working part time in three different jobs.  She believed she could work up to twelve or fifteen hours a week as a medical practice nurse.  She believed she could work at Allambi as an aged care nurse for up to sixteen to eighteen hours a week over three days.  Her ideal employment goal would be to get back to remote nursing, perhaps with the Royal Flying Doctor Service, but she believed that her maximum capacity would not be more than three days a week.

240The plaintiff’s adaption to her low back injury seemed good.  He did not have an opportunity to observe her standing and walking during the assessment.  She was able to sit for ninety minutes without a break, although she seemed a little tense and restless on the chair, increasingly so as the interview progressed.  She displayed only a mild, but consistent, level of observable pain behaviour during the assessment. 

241The plaintiff had no capacity to return to her full pre-injury or similar occupation now or in the foreseeable future.  She had a capacity for part-time employment in alternative occupations for which she had the necessary skills, training and/or experience.  The work duties of those occupations did not exceed the injury limitations outlined for her in the medical reports.

242She had the ability to participate in an occupational retraining course.  She seemed to have some potential for employment in the future, but only if she could complete an appropriate course of occupational retraining.  She was likely to have a capacity for a wider range of part-time employment if she were to complete a course of occupational retraining. 

243The plaintiff had no current work capacity to return to her full pre-injury employment or any other similar employment.  She had a capacity and had returned to part-time employment in some alternative occupations for which she currently had qualifications, skills and training.

The Defendant’s medical evidence

Medico-legal

Dr Gale Curtis, orthopaedic surgeon

244Dr Curtis examined the plaintiff in December 2014.  He then thought her presentation was consistent with a discal injury at work and congruent with the radiology.  In his view, she was then modestly impaired.

Associate Professor Goldwasser, orthopaedic surgeon

245Mr Goldwasser saw the plaintiff in May 2017.  He was provided with the reports of the 2014 lumbar investigations and the March 2015 MRI scan. 

246The plaintiff then reported pain worse in her lower back just to the right of midline, present 90 per cent of the time, and made worse by activity. 

247On examination, the plaintiff walked with a normal gait.  There was some restriction of all back movements to a relatively mild degree.  There was localised tenderness in the midline of the lumbar spine in the middle and lower back regions.  There were no neurological abnormalities or any wasting.

248The injury was most likely a soft tissue one.  There was a partial improvement and subsequent return to modified duties with an exacerbation in March 2016, when the plaintiff stopped work, and she had not worked since.  There was a partial improvement in her condition reverting to much the same as it was prior to the exacerbation, and she continued to have intermittent symptoms in her back.

249The combined whole person impairment remained at zero per cent.

Medical Panel

250On 31 August 2021, the Medical Panel, consisting of Professor Michael Simm and Elisabeth Lewis, found the plaintiff had a 0 per cent whole person impairment resulting from the accepted back injury.

251The Panel had available reports of all relevant lumbar investigations.

252On examination on 5 August 2021, the plaintiff described her back pain as a general ache, which was more annoying than painful.  If she sat for more than an hour, that ache could radiate into her right buttock in the middle of her right thigh, and that happened about every fortnight, depending on her activity.  After about twenty minutes in a chair, she needed to be constantly wriggling to get comfortable and needed to get up after about an hour.

253The Panel reported the plaintiff advised she was coping quite well with her work eight hours a week and was thinking of taking on further nursing work.

254On examination, her gait was normal and there was good spinal alignment, and the lumbar lordosis was normal.  There was no lumbar spasm.  There was very mild generalised soft tissue tenderness in the central lower back, but no specific tender spots along the spine, and no paraspinal tenderness.  All spinal movements were free and full.

255The Panel concluded, after taking note of the circumstances of the plaintiff’s accepted injury causing lower back and right leg pain, the history of improvement of lower back and right leg pain with conservative treatment, mild persisting complaints of lower back ache, the minimal non-specific findings on physical examination related to the back and no signs in the legs and the imaging, which initially showed an L4-5 disc prolapse, which had resolved by the time of the March 2015 MRI scan, that the plaintiff was suffering from mild continuing complaints and symptoms following an L4-5 disc protrusion of the lumbar spine, which had now resolved and with no evidence of radiculopathy relevant to the accepted back injury.

Associate Professor Anthony Buzzard, general surgeon

256Mr Buzzard initially saw the plaintiff in May 2016.  He was provided with the reports of the 2014 lumbar investigations and the March 2015 MRI. 

257The plaintiff had returned to work in January 2015 on limited duties – 5-kilogram lifting restriction and no repetitive bending and twisting.  She had not returned to work since March 2016 when a client fell on her.

258The plaintiff was then taking, on average, four Panadol tablets a day and Nurofen, two tablets per day.  She had also taken Valium and OxyContin but not of recent times.

259The plaintiff then described being tender in the centre of her back, extending to the right buttock area and right hip region, and sometimes down the back of the right leg to the calf.

260On examination, she was able to sit at right angles on the couch without apparent pain.  Straight leg raising test was equivocal on the right at 60 degrees.  Using a goniometer, forward flexion was 80 degrees, and all other movements were full.  There were no neurological abnormalities.

261The plaintiff had a soft tissue injury to the low back region as a result of the incident, aggravated by further recent injury in March 2016, following which she had not worked.

262The plaintiff was capable of suitable employment but not pre-injury employment.  She should have a lifting limit of 15 kilograms but no other restrictions.  A review in three months was suggested.  It was reasonable to accept that she had a light work back.  Her back problem was of nuisance value in social and domestic situations.

263On re-examination in September 2022, the plaintiff reported continuing to suffer from low back pain of a similar nature.

264On examination, she was able to sit at right angles on the couch without difficulty.  She reported some tenderness in her low back region.  Straight leg raising tests were negative. 

265Movement of the lumbosacral spine measured with a goniometer was found to be full in forward flexion and extension albeit to 30 degrees of lateral flexion in each direction and 30 degrees rotation.  There were no reflex abnormalities.

266The plaintiff’s condition had not significantly changed since the last examination, and he did not think her ongoing back symptoms were indicative of significant physically based pathology.

267It was reasonable to accept that the plaintiff did suffer from ongoing low back pain due to some degenerative disc disease in her spine evident in the 2015 imaging.  It was appropriate for this to be treated with oral analgesics and like medication.

268There was evidence of some apparent psychological problem outside the field of his expertise.

269The plaintiff continued to suffer from a light work back, which would preclude her from full duties as a Division 1 nurse, but would not preclude her from timed suitable duties.

270He could not find any evidence of inconsistencies between the reported symptoms and the physical examination findings.  He did not think there was now any work-related contribution to the plaintiff’s lumbar spine affecting her.  Her degenerative disease was not work related, evidence for which was found in the radiology.

271The plaintiff’s light work back was not related to any specific work injury, and she continued to be able to perform suitable duties as a Division 1 registered nurse until the age of retirement.  By light work back, he meant that she was not fit for carrying out any heavy lifting.

272The plaintiff was able to work as a Division 1 registered nurse on light duties, as a nurse educator, nurse researcher, pathology collector, admission clerk and medical receptionist.  She was capable of working full time in suitable employment.  It was reasonable to accept that she had a lifting limit of 15 kilograms but no other restrictions.

273There was no evidence of abnormal illness behaviour or conscious or unconscious signs of exaggeration.

Investigations

274The plaintiff had a lumbar MRI scan in March 2015.  It was reported that at L4-5, there was no disc protrusion or extrusion.  There was bilateral moderate facet joint arthropathy without central canal or neuroforaminal stenosis.

275The impression was that there were no findings to suggest protrusion or extrusion, and no central canal or neuroforaminal stenosis.  There was multilevel facet joint arthropathy.  It was noted that this could result in back pain radiating to the gluteal regions, and clinical correlation was recommended.

Psychiatric

276Associate Professor Damodaran, psychiatrist, examined the plaintiff in November 2016, and  Dr Matthew Tagkalidis, psychiatrist, examined her in May 2017.   Neither report was referred to in submissions.

Nhill clinical notes

277The most recent complaint of back pain was on 19 January 2022 when there was a request for a prescription, with Panadeine Forte and Valium noted.

278On 27 May 2021, the results of a lumbar CT scan were noted, and actions included diagnostic imaging requested of a lumbar MRI scan.  Valium was also prescribed.

279On 25 May 2021, Dr Wang noted that the plaintiff was still complaining of lower back pain, attending a request for a CT scan and reported an increase in weight over the last year.

280On 19 May 2021, the plaintiff complained to Dr Wang of lower back pain, a history of an old injury at work six years ago, having seen the chiropractor the day before.  On examination, there was pain on palpation of the lumbar spine, more pain on back flexion.  The results of the 2014 CT scan were noted.

281On 3 February 2020, the plaintiff saw Dr Fawad.  The history was of multiple presentations with joint pains “all work up reassuring including RF, going through some tough time, ongoing GAD, last seen psychologist but not satisfied, now here to get another referral for mental healthcare plan”.

282Under “musculoskeletal”, it was noted there was joint pain, no joint stiffness, no deformity, no joint swelling, no restricted movement, no back pain, neck pain, sciatica.  Under “Psychological”, there was poor sleep, normal mood, self-esteem, et cetera.  The reason for contact was a mental health plan.

Vocational evidence

283There were a number of return to work plans of various dates and a worksite assessment report in February 2015.

284A 130-week vocational assessment report dated 1 July 2016 identified the following suitable jobs for the plaintiff: registered nurse, nurse educator, nurse researcher, pathology collector/phlebotomist, admissions clerk and medical receptionist.

Overview

285It is not in dispute that the plaintiff suffered a lower back injury while moving a patient at work on the said date.

286The injury was initially diagnosed as a disc bulge at L4-5, reported on the 2014 lumbar MRI; however, a further lumbar MRI scan in March 2015 showed no disc protrusion or extrusion.[71]

[71]T62

287In general terms, more recently, the plaintiff’s condition has been described as  aggravation of lumbar disc degeneration.  Mr Buzzard was the only examiner who thought this condition was now not incident related.  However, this opinion was not relied on by the defendant, which accepted that the degenerative changes the plaintiff suffered are still work related.[72]

[72]        T63

288Counsel for the defendant, however, submitted the nature of injury was a rather modest pathological condition, a resolved disc bulge and residual pain – “It is not, however, a bulge - there was a ‘vanilla’ aggravation of degenerative change”.[73] 

[73]        T63

289Counsel for the plaintiff took great issue with the description of “vanilla”.  It was submitted it was clear from the plaintiff’s parents’ affidavits that, pre incident, the plaintiff was extremely active, with everything in front of her.  While it was not a massive disc prolapse, it was limiting her, and affecting her in all aspects of life, and the description of “vanilla” was certainly argued with.[74]

[74]        T84

290As counsel for the plaintiff submitted, in any event, the impairment and its consequences, not the injury, is the relevant consideration when determining this application.[75]

[75]T84

Consequences

291In general terms, counsel for the defendant submitted, when one looked at what the plaintiff had retained, she had the ability to be a single parent and did a very good job.  She was able to hold down employment while managing the difficulties of being a parent, and she volunteered at the football club.  It is not a situation where she said that she is restricted and recoiled from all friendships.  She goes camping regularly,[76] “So when one crystallised the pain and suffering consequences to anchor them to the nature of injury, there are only very small aspects of consequences which can drive the finding”.[77]

[76]T78

[77]T79

Credit

292As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[78]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[78](Supra) at paragraph [12]

293There was no attack on the plaintiff’s credit in this application.  It was accepted there are some restrictions on her activities that had not been challenged.[79] However, it was submitted some objectivity was needed, it was not as simple as the Court accept what she says, where there is nothing to back it up from other doctors.  It is not just enough for the plaintiff to say what her capacity is – “One needed to link it to something, otherwise one risked making a finding which was not supportive.”[80] 

[79]        T76

[80]T69

294As I indicated during the hearing, I found the plaintiff to be a credible witness and,  in my view, her pain and suffering application was strong, with the loss of career and inability to participate in a wide range of activities being serious consequences.[81]

[81]T76

295Counsel for the plaintiff added the plaintiff was exceptionally impressive, both in her presentation, where she was in obvious physical discomfort during the course of her evidence.  It was not a surprise she became upset about emotional things.  She cooperated with all the doctors on examination and not one said there is a psychological input into her symptoms.[82]  She probably understated her limitations.[83] 

[82]T79

[83]T80

Consequences

Pain

296As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[84]

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)     what the plaintiff says about the pain (both in court and to doctors);

… .”

[84](Supra) at paragraph [11]

297The plaintiff continues to experience constant back pain, at times radiating into her right leg.

298Counsel for the defendant submitted the plaintiff’s complaints of pain were at a relatively low level, with the large bulk of symptomatology being a “niggle” as she described to Dr Horsley at one to two out of ten.[85] 

[85]T65

299While the plaintiff conceded that this was the case on most occasions, with any activity her pain increased significantly – up to seven out of ten and she then had to lie down. Two out of ten was just sort of background pain and then, when she did anything, her pain levels increased significantly.[86]

[86]T87

300The plaintiff’s current treating GP, Dr Wang, in his August 2022 report, described her back pain as chronic, interfering with her ability to perform most of her daily activities.[87]

[87]T88

301There has been no suggestion that the plaintiff was exaggerating her pain levels, either when medically examined or at any other time.  Mr Buzzard could not find any evidence of inconsistencies between the reported symptoms and the physical examination findings.  In my view, if anything, the plaintiff understated her level of pain and discomfort.

Physical restrictions

302While there have been variable findings in terms of range of movement on examination,  the consensus of medical opinion is that as a result of her lumbar impairment, the plaintiff is restricted in her ability to lift, bend, push and pull and maintain prolonged postures – sitting and standing.  She has difficulty driving for extended periods.

Treatment

303The plaintiff has undergone a range of conservative treatment without significant improvement.

304She continues under the care of her GP at Nhill.  While it was submitted the few attendances in recent times for back pain when there were a significant number of attendances for unrelated matters[88] did not indicate significant back pain,[89] I accept the plaintiff’s explanation that there is nothing more that can be done in terms of treatment.  She continues to work at Nhill, where doctors are aware of her chronic back pain[90] and if she needs more painkillers, can get them there. 

[88]        Three times from February 2020 to date

[89]T66

[90]        Dr Wang’s report

305The plaintiff has had specialist treatment, having been referred to orthopaedic surgeon, Dr Tan, in October 2014, last having seen her in mid-2015.  Dr Tan saw the plaintiff, together with physician, Ms Li, who suggested prolotherapy, which the plaintiff chose not to undertake for the reasons she explained.  Various spinal investigations were undertaken.

306The plaintiff also self-funded physiotherapy and chiropractic treatment.  She was referred for pain management but did not commence the program as she fell pregnant.

307The plaintiff continues to take over-the-counter medication on a fairly regular basis, taking over-the-counter Panadol and Nurofen, and then Panadeine Forte, or Valium, if there is a flare-up.  

308Mr Buzzard still thought, as at September 2022, that the plaintiff required oral analgesics and like medication for her back condition.

Work consequences

309The consensus of medical opinion is that the plaintiff does not have the capacity to resume full-time unrestricted nursing due to her lumbar condition.

310However, loss of career was not conceded.  Counsel for the defendant submitted that the plaintiff had shown a desire to pursue more specialised nursing, with which there would be fulfilment, and that she had retained a wide range of skills, including the ability to work with patients.[91] 

[91]T76

311Mr Buzzard described a light work back, which it was submitted meant a complete capacity to do other duties unrelated to heavy physical labour.[92]  It was submitted that, “if we came back in a few years’ time, … [she] would be pursuing these activities and finding greater enjoyment in her work”.[93]

[92]T68

[93]T79

312In my view, the plaintiff has lost her chosen career and there is no evidentiary basis for the optimistic position put on the defendant’s behalf.

313The plaintiff is no longer able to do the wide range of nursing that she previously enjoyed and was trained for, including as an outback and regional nurse involving a lot of travel in the bush. She has been unable to finish a Post Graduate Certificate in Rural and Remote at the University of Southern Queensland which she had commenced the year of the injury.

314As occupational physician, Dr Horsley, opined, the plaintiff is permanently unfit to return to previous roles as a district nurse, bush nurse or Division 1 nurse in a public hospital environment.  The critical physical demands of patient management are now beyond her capacity.

315Dr Fish also considered the plaintiff cannot be a district nurse because she is unable to sit or stand for long periods/drive and cannot perform heavy lifting.  This would particularly preclude her from lifting and moving heavy patients as required with bush nursing and working with aged care residents. 

316As the plaintiff told vocational assessor, Bill Radley, she has lost her ideal employment goal returning to bush nursing like the Flying Doctor.

317Loss of ability to pursue her chosen career and the plaintiff’s frustration at that loss is a relevant pain and suffering consequence in this application.[94]

[94]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [15]; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67 at paragraph [38]

Other activities

318In addition to a very active work life, the plaintiff was undertaking a range of very physical activities at the time of her incident injury and enjoyed an active social life.

319The plaintiff is truly a “country girl”, raised on the farm at Nhill, who enjoyed a full life there before her injury, as her parents confirmed.  The plaintiff assisted them with a range of activities on the farm, including working with the sheep; however, her attempts to assist post incident in this regard were short lived due to her back pain.

320As her father confirmed, pre incident, the plaintiff enjoyed going dirt riding with friends in the bush but has not been able to do so since the incident.  She owned and rode her own horse but no longer rides because of her back injury. She can no longer gather firewood.

321Socially, the plaintiff enjoyed pole dancing, attending classes in Melbourne for fitness and even going to Western Australia to attend a pole dancing camp, as her mother deposed.  Further, the plaintiff no longer goes dancing with her friends at the pub because of her back pain.  

322In these circumstances, the plaintiff’s back problem is certainly more than “nuisance value” in social and domestic situations, as Mr Buzzard described.

323There was no challenge to her evidence as to her inability to engage in this range of activities; however, counsel for the defendant submitted, at her present stage in life, “She wouldn’t be doing much anyway because of Jed”.[95]

[95]T77

324I do not accept that the plaintiff’s childminding duties preclude her participating in these activities.  She can no longer engage in these hobbies due to back pain.

325She has recently had to reduce her involvement in football training which was an activity which gave her pleasure and social contact.

326While she has some help with housework through the NDIS because of what was described as ADHD, she has significant difficulties on a physical basis with heavy or manual work.

327The plaintiff still has problems with sleep and her sex life due to back pain.  She is restricted in her ability to look after and play freely with Jed as she would like.

328At thirty-four, the plaintiff is still a relatively young woman.

329In Stijepic v One Force Group Aust Pty Ltd,[96] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.

[96] [2009] VSCA 181 at paragraph [43]

330The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, they considered it relevant to look at the likely period for which those consequences would be experienced.  It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.

331Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s lumbar impairment are “serious”.

332I also accept that these consequences are permanent, given they have persisted for more than eight years.

333Accordingly, I grant leave to bring proceedings for pain and suffering damages.

Loss of earning capacity

334There was no dispute that the plaintiff’s “without injury” earnings were in the range of $59,000.[97]  She, therefore, must establish, on a permanent basis, she does not have the capacity to earn in excess of 40 per cent of that sum, namely $36,000 per annum.[98]

[97]        2013-2014 tax return – earnings of $59,339

[98]2021-22 tax return – earnings of $ $22,665

335After initially being off work for six months, there was a gradual return to work, but the plaintiff never returned to full-time unrestricted duties – avoiding lifting and moving patients and performing any showering duties. 

336The defendant’s 2016 letter indicates it had concerns about the plaintiff’s ability to do her duties without further injury.  Despite Dr Chinogara’s rather hopeful letter in March 2016 – which also contained a description of the difficulties the plaintiff was still having at work at that time – the defendant did not offer the plaintiff a suitable job but rather terminated her employment without explanation.  In any event, in her referral of the plaintiff to the pain management service in August 2016, Dr Chinogara noted the plaintiff was then going to try and manage three days’ work a week.

337I accept the plaintiff is currently working at her full capacity and would work more hours if not for pain.  It is very light work at Nhill, and she has difficulty with the limited bending involved, giving out medicine or taking bloods.  At Allambi, her tasks are mainly supervisory, and she does no hands-on work.

338Save for Mr Buzzard, all examiners agree the plaintiff is working at her full capacity. However, Mr Buzzard did not take any detailed history from her of the very light nature of her limited current work and her need to lie down every four hours because of back pain.

339In July 2021, Dr Boyce did have that history from the plaintiff and was told by her that further hours increased her pain.  He thought the plaintiff’s current incapacity and limitations were likely to persist for the foreseeable future.

340In March 2022, in Dr Horsley’s view, the plaintiff was currently working at her capacity of sixteen hours a week.  As the plaintiff then told Dr Horsley, her back condition was aggravated when she recently increased by four to eight hours a week when a co-worker was away. 

341As at November 2022, Dr Fish thought, overall, the plaintiff was capable of working up to fifteen or sixteen hours a week, with five hours a day on Mondays, Wednesday and Fridays, and it was unlikely her capacity has or will increase.  This incapacity was permanent.

342These occupational physicians had been provided with the correct history as to the plaintiff’s return to work and the level of current complaints and medication.[99] 

[99]T83

343Further, Mr Doig thought the plaintiff was back in suitable employment on a part time basis and was then doing approximately twelve hours a week, which she may be able to increase, depending on whether she coped with that or not.

344As at August 2022, Dr Wang noted that the plaintiff was currently working only four hours per day, three days a week on light duties and then had to lie down.  He described this as suitable employment where she was allowed freedom of movement between sitting, standing and walking and not involving heavy lifting, pushing or pulling.

345I accept the plaintiff is capable of working up to sixteen hours a week, spread over a number of days, with rest days in between, and that when she has attempted to work more hours, she suffered increased pain, as she described to Dr Horsley.

346I do not accept the plaintiff is structuring her limited work hours because of her responsibilities to her son, as counsel for the defendant submitted.[100]

[100]T73

347I accept that the plaintiff has a strong work ethic.  She is bright and motivated and would be working more hours in more intensive nursing work if it was possible. She could request the help of her parents or arrange childcare to look after Jed, if she was capable of working further hours.

Unrelated condition

348Counsel for the defendant submitted the plaintiff’s psychiatric condition was “clearly a large part of her make up.”[101]  She had been undergoing significant treatment from Tammy Barber, who diagnosed ADHD and organised home help. There was no report from that practitioner to know the true picture with respect to the plaintiff’s incapacity driven by psychological issues.[102] 

[101]T74

[102]T75

349In Peak Engineering Pty Ltd & Anor v McKenzie,[103] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[103]      Supra

350In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[104]

[104]      At paragraph [1]

351The President found that the judge was:

(a)   bound to identify, and exclude, the continuing consequences for the plaintiff of the non-compensable condition; and

(b)   when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[105]

[105]      At paragraph [2]

352I am satisfied the plaintiff has suffered the requisite loss of earning capacity as a result of her back condition alone.  She has suffered the requisite loss due to her inability to work because of back pain.

353The plaintiff’s mental health issues were more significant in 2015 as she freely acknowledged; however, she is now not taking any antidepressant medication and recently ceased seeing Ms Barber for counselling.

354In any event, consultant psychiatrist, Dr Kalra, who saw the plaintiff on 29 June 2015 following a referral from Dr Chinogara for a specialist opinion and ongoing management, then thought, from a psychological perspective, the plaintiff had a current capacity for pre-injury duties. 

355Treating psychologist, Jenny Keir, thought, in January 2016, the diagnosis was Adjustment Disorder with Anxiety and Depression which had arisen as a result of the plaintiff’s work-related back injury.  In her view, the plaintiff’s psychological condition would remit fully, provided her back injury and pain diminish sufficiently for her to be physically able to return to her full nursing role or some other satisfying profession.

356From a psychological perspective, she thought the plaintiff had the capacity to perform suitable part-time employment, within the limits of her physical injury. 

357On examination in 2022, psychiatrist, Dr Epstein, thought, taking into account only her mental health issues, the plaintiff had the capacity to return to work as a registered nurse, and it was only her ongoing physical symptoms that prevented her resuming full duties and working full time because of pain and fatigue from her physical injuries.

358While Dr Schutz had a different view, from a purely psychiatric perspective, he thought the plaintiff maintained a capacity to work twenty-five to thirty hours a week in any role for which she had training and expertise, of which such training could be provided, and within her physical restrictions. 

359As the plaintiff is only capable of working sixteen hours a week, she has suffered the requisite 40 per cent loss.

360I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

361A range of nursing alternatives have been suggested by the vocational assessor and occupational physicians.  The plaintiff is willing and motivated to take up some of these options.

362However, I am not satisfied that the plaintiff’s work capacity would increase beyond its current level – even if training was successfully completed – given the very light nature of work she is currently doing.

363The plaintiff could retrain, but there is no evidence that, if she did, as a lactation nurse, she would be able to work full time, or earn more than the threshold amount of $36,000.  As counsel for the plaintiff submitted, the evidence about retraining and what could happen then was so speculative in any event, and hypothetical.  While the onus is on the plaintiff to rehabilitate and retrain, that has to be realistic.[106] 

[106]T85

364In any event, as vocational assessor, Mr Radley, opined, the plaintiff’s capacity in alternative occupations for which she could be retrained was only part time.

365In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s325(2)(g). 

366As the plaintiff’s impairment has persisted now for more than eight years, despite extensive non-surgical treatment, I am satisfied that it is permanent. 

367Accordingly, I also grant leave to bring proceedings for damages in relation to loss of earning capacity.

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