Davey v VWA
[2016] VCC 184
•3 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-00130
| RACHEL DAVEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2016 | |
DATE OF JUDGMENT: | 3 March 2016 | |
CASE MAY BE CITED AS: | Davey v VWA | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 184 | |
REASONS FOR JUDGMENT
---
Subject: Serious Injury Application
Catchwords: Application for leave to recover damages for pain and suffering – aggravation injury to lumbar spine – relevance of decision to undergo caesarean section
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Kaur v Victorian WorkCover Authority [2014] VSCA 300
Judgment: Leave granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M. Pilipasidis | Maurice Blackburn Lawyers |
| For the Defendant | Mr M. Clarke | Wisewould Mahony Lawyers |
HER HONOUR:
Introduction
1 I propose to grant the plaintiff’s application to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to recover damages for aggravation injury to her lumbar spine arising out of or in the course of her employment with her former employer, Aldi (the employer), on or about 2 May 2012. My reasons for so ordering are set out in the paragraphs that follow.
Background
2 Leave was sought under paragraph (a) of the definition of ‘serious injury’ to recover damages for pain and suffering only for permanent serious impairment of the plaintiff’s lumbar spine. In the context of the Act, ‘permanent’ refers to impairment of the lumbar spine that is likely to last for the foreseeable future. ‘Serious’ refers to the pain and suffering and loss of enjoyment of life consequence, which when judged by comparison with other cases in the range of possible impairments is fairly described as being more than significant or marked and as being at least very considerable.
3 Both parties tendered extracts from the Court Books.[1]
[1] Exhibit P1, Plaintiff's Court Book (PCB) and Exhibit D1, Defendant's Court Book (DCB)
4 The plaintiff tendered:
· subject to corrections made at hearing, affidavits sworn on 26 August 2014 and 11 February 2016 respectively.
· Medical reports, comprising reports from treating health specialists, chiropractor, Dr Toy; general practitioners, Dr Mancey-Jones and Dr Carruthers; orthopaedic surgeon, Mr de la Harpe; exercise physiologist, Mr Neeson and obstetrician, Dr Regan and from medico-legal specialist, neurosurgeon, Mr Brownbill.
· The results of MRI investigation of the lumbar spine dated 11 September 2012.
5 The defendant tendered:
· The report of medico-legal specialist, orthopaedic surgeon Mr Carey.
6 The defendant concedes compensable injury to the lumbar spine involving aggravation of pre-existing degenerative changes. The plaintiff’s credit was not challenged. The plaintiff presented as a straightforward, if somewhat timid witness. She was a credible historian.
7 The defendant further concedes permanent impairment and some significant consequences which include what is commonly referred to as a ‘Iight’ work back. I was, however, called upon to determine whether the pain and suffering and loss of enjoyment of life consequence of impairment of the lumbar spine is fairly described as being at least very considerable.
The circumstances under which the plaintiff suffered compensable injury
8 The plaintiff is 34 years of age. She is married with a four-month-old child.
9 The plaintiff was employed by the employer as a Senior Purchasing Assistant from about 15 October 2002 until she resigned in May 2014. It was a full-time role performing mainly administrative duties between 6:30 am and 3 pm Monday to Friday. The plaintiff deposes that as part of these duties she was expected to replace paper reels weighing between 18kg and 20kg in a printing machine on average six times per week.
10 In her first affidavit the plaintiff describes the circumstances in which she suffered compensable injury:[2]
9. On or about 2nd May 2012 I was moving rolls of paper office stack because I needed a role that was at the bottom of the stack. I lifted the role of paper I needed and carried it to the printing machine and as I was lowering the roll into place I experienced pain in my neck and back. I was able to continue to work the rest of the day, although I did continue to experience pain.
[2] PCB 6
11 The plaintiff deposes that pain persisted and worsened. She attended work the next day, on Thursday, but left some hours later and remained off work on Friday due to pain. After resting over the weekend, the plaintiff managed only a few hours of work on the following Monday and Tuesday.
12 On 9 May 2012 the plaintiff consulted chiropractor, Dr Toy, who sent her to general practitioner, Dr Stephens. He saw the plaintiff on the same day. The plaintiff was certified unfit for work and advised to continue the chiropractic treatment.
Return to work and treatment prior to falling pregnant in February 2015
13 On her return to work the plaintiff worked reduced hours (five days per week between five and six hours per day) with restrictions on heavy lifting. However, she deposes back pain had not improved when, on or about 6 August 2012, she sought further treatment from Dr Stephens.
14 The radiologist’s report of MRI investigation obtained on 11 September 2012 relevantly revealed discogenic disease at the L5/S1 level; evidence of a small central annular fissure at the same level; and evidence of what the radiologist’s characterised as a ‘mild’ central disc protrusion encroaching on the anterior aspect of the thecal sac, without causing any significant neural compression.[3]
[3] PCB 44
15 The plaintiff was referred to orthopaedic surgeon, Mr de la Harpe, whose first available appointment was on 13 November 2012.
16 The plaintiff deposes that, in the meantime, she had difficulty coping with her work duties and felt stressed by what she perceived to be pressure from the employer to return to normal hours and duties. In late September 2012, the plaintiff was certified unfit for work. She commenced seeing a psychologist from about 4 October 2012.
17 As I understood the evidence at hearing, the plaintiff initially used analgesia and had used Panadeine Forte to control pain. It appears that in October 2012 Dr Mancey-Jones prescribed Norspan patches for pain relief. These were discontinued after one week due to adverse side-effects.
18 Having examined the plaintiff on 13 November 2012 and reviewed the available scans, Mr de la Harpe diagnosed degenerative and mechanical low back pain. He recommended ongoing conservative treatment involving physiotherapy and a core stability exercise program. He saw no benefit in surgical intervention. Mr de la Harpe relevantly opined:
· the onset of back pain and plaintiff’s injury was consistent with the stated cause.
· the plaintiff’s capacity for work both in 2012 and for the future was restricted to sedentary duties.
· the plaintiff’s prognosis was ‘overall reasonable’ as long as she did not return to employment involving manual labour.
· future medical treatment may include ongoing physiotherapy and self-directed exercises.
19 In the period between the specialist assessment and a likely stress related collapse at work in January 2014, the plaintiff deposes her condition was aggravated by attempts to increase her hours to full-time and by driving two-hours daily to attend work. By December 2013 the plaintiff was managing four days’ work per week spread over 30 hours by using her day off to rest and recover.
20 The plaintiff married in February 2014 and spent three weeks on honeymoon in the USA.
21 Having resigned, in May 2014 the plaintiff commenced employment as a Logistics Manager with a winery located a five minute walk from her home. The plaintiff was employed 40 hours per week in an office-based job, managing the ordering of wines.
22 When the plaintiff swore her first affidavit in August 2014 her treatment regime involved: monthly consultations with the chiropractor or, less frequently depending on funding; fortnightly self-funded myotherapy; self-funded Pilates one to two times weekly; weekly exercise programs with exercise physiologist, Mr Neason; and, if she was able to, attending gym a few times each week to swim and stretch and for a light work-out. The plaintiff also took medication and used heat packs and the gel, Deep Heat, regularly to relieve pain.
23 As to the medication taken, the plaintiff deposes she took Panadeine Forte when “pain was really bad” and she was having difficulty sleeping and Nurofen and Panadol Osteo daily depending on her pain levels. At hearing, the plaintiff said she took Panadeine Forte, on average, two to three times weekly (up to four times per week) and Nurofen – “Pretty much every day”.[4] Whilst under cross-examination the plaintiff recalled days (“very few”[5]) when she had tried to avoid taking medication, she could not recall days where she had been pain free.
[4] Transcript (TN) 14
[5] TN27
24 Under cross-examination the plaintiff accepted that, with exercise her condition was stabilised and manageable before she fell pregnant, but challenged the fairness of the description of her condition by Dr Mancey-Jones, as at May 2014, as: “some slight back ache which was manageable as long as she attended the gym for back care exercises (sic) ..”.[6] The plaintiff attributed this assessment to having not worked in the three to four months before the consultation in May 2014 and added: “It depends on your definition of “manageable”. I was in a lot of pain, but I was getting by. I had to”.[7]
[6] PCB 39
[7] TN 25
25 In August 2014 the plaintiff describes:
· constant pain that varied according the activities performed and lower back pain that radiated into her right thigh and calf.
· Restriction in her movements with pain on extending or bending her lower back.
· Reduced tolerances for particular activities, such as driving (about 30 minutes), standing (about 10 to 15 minutes), sitting in a cinema, dancing, walking up hill, prolonged walking or walking her dogs (she could only walk them for short distances and is unable to lift the dogs in and out of the car).
· Due to back pain, an inability to pursue recreational activities she had previously enjoyed, such as, bowling, skiing, ice skating, attending the movies, dancing or long bushwalks with friends.
· An inability to perform housework that requires repetitive movements such as vacuuming, mopping or cleaning the bathroom and difficulty tending her large home garden.
· Weight gain due to an inability to run, take boxing classes or exercise as vigorously as in the past.
· A reduction in the frequency of sexual activity due to back pain.
26 The reports submitted in this period by general practitioners, Dr Mancey-Jones and Dr Carruthers, the chiropractor, Dr Toy and the exercise physiologist, Dr Neason, generally support the plaintiff’s evidence regarding her treatment regime and the ongoing impact of this condition on the plaintiff’s employment and day-to-day activities.
27 Dr Toy’s earliest and typically detailed reports made between 16 August 2012 and 21 February 2015, among other things, establish that the treating chiropractor believed her patient had reached maximum medical improvement and her patient was by then expressing concern about the impact her back condition would have on her physical capacity to have a family.[8]
[8] PCB 30
Symptoms and treatment after falling pregnant in February 2015 and the return to work plan
28 It appears that pregnancy, breast feeding and activities required in the ongoing care of her baby born by elective caesarean section on 14 October 2015 have had a significant impact on lower back pain and the plaintiff’s ability to manage this.
29 At hearing the plaintiff said she was never free from pain, which was greater or lesser according to the activities performed. She cited lifting her growing son as one such activity.
30 In her further affidavit the plaintiff deposes she ceased taking the stronger medications, Panadeine Forte and Nurofen, after she fell pregnant. She has, she said, struggled to cope with heightened back pain during pregnancy and following the birth of her son.
31 The plaintiff presented as a very conscientious young woman, whose desire to protect her son from any harmful effects of medication has meant that she has attempted to remain medication free until her son is weaned. Yet, despite her commendable restraint, on perhaps eight or ten occasions since his birth, the need to function and care for her son has, the plaintiff said, compelled her to take non-prescription pain relieving medication. Indeed, in re-examination the plaintiff confirmed there has never been a time when she completely stopped taking medication since suffering the injury.
32 I infer from the plaintiff’s evidence of problems managing pain during pregnancy and since the birth (“so until I stop breastfeeding, I will not be seeking to increase my medication”[9]) and from Dr Toy’s comments on the plaintiff’s “persistent need”[10] for analgesia and anti-inflammatory medications, that once breastfeeding ceases, the plaintiff will likely resume a medication regime similar to that followed before pregnancy or she will continue to exercise the degree of stoicism she has demonstrated since falling pregnant for the foreseeable future.
[9] TN 21
[10] PCB 32
33 Save for intervals of six weeks and about twelve weeks respectively following her son’s birth, the plaintiff has continued self-funded therapies involving chiropractic treatment on a monthly basis (manipulation and to lesser extent, massage) and Pilates weekly.
34 Apparently, while pregnant, the plaintiff took some days on sick leave. However, it was the opportunity to work from home when necessary, which enabled the plaintiff to continue working until September 2015. At hearing, the plaintiff recalled that during pregnancy she usually took one day off per week and occasionally left early to work at home because she was experiencing significant pain and had problems sitting. Working at home, the plaintiff said, gave her the option of resting and sitting in bed or lying on a couch whilst using her laptop.
35 The plaintiff is due to return to part-time employment at the winery in late February 2016 in a new role as a procurement manager sourcing products for the wines. This is still a sedentary/administrative role without extra duties or additional pay.
36 The plaintiff agreed her position as a procurement manager was for 40 hours per week, although she had an arrangement with her current employer that on her return from maternity leave she will commence working 2 ½ days or 20 hours per week to see how she copes. Whilst the plaintiff attributed the arrangement to return to work on reduced hours to both her family commitment and her back condition, the hours worked would, she said, depend on the level of back pain experienced once she returns to sitting at a desk.
37 As I understood the plaintiff’s evidence, she was not confident she would be able to return to working 40 hours per week because back pain had increased since her pregnancy and because of the physical demands placed on her in caring for her son. Logically, exacerbation of pain levels due to the physical demands of caring for her son are likely to continue to impact on the plaintiff’s capacity to work full-time, for the foreseeable future. This would be so, even after making allowance for the likely ameliorative effect of taking stronger pain killing medication once breastfeeding ceases.
38 As to the impact of pain and disability on the plaintiff’s day-to-day activities she deposes that her husband performs a lot of the house work (including the washing). The plaintiff remains capable of performing very light cleaning tasks; light washing of her son’s clothes; cooking light meals and caring for their son. However, since her son’s birth, pain is exacerbated by the tasks she performs in caring for him. The baby’s weight is increasing quickly. He now weighs six kilograms. The sorts of activities the plaintiff said exacerbate pain include, bending and lifting when placing the baby into or removing him from the cot; leaning when changing nappies or clothing and lifting her son from floor level after play.
39 Tellingly, in the four months since his birth, the plaintiff has never bathed her son. The plaintiff is understandably saddened by the loss of the opportunity to experience and enjoy this aspect of motherhood. Her husband bathes their son. If he’s not at home the plaintiff improvises by using a sponge to wash the baby.
40 The plaintiff’s recreational pursuits continue to be limited in the manner described earlier.
41 Under cross-examination, the plaintiff explained:
· she had not tried running since her pregnancy;
· she and her husband rarely dine out because this involves prolonged sitting, although the plaintiff occasionally catches up with friends for coffee at their home;
· prior to her injury she loved skiing. Due to financial constraints, she only skied for a about a week annually and took day trips to Mt Buller. Since her injury the plaintiff indicated she was not willing to risk skiing again;
· prior to her injury she went ice skating once or twice a year;
· apart from attending mother’s group, the plaintiff is somewhat isolated by her disability. Her condition restricts her capacity to go out with her son, whether in the car or on walks. They live on a steep dirt road and do not walk the baby in the pram on the road. Rather the pram is kept in the back of the car. Her husband works. Other than when this involves an essential trip, for instance to attend the doctor, the plaintiff avoids removing the pram from the back of the car. If her husband is at home the plaintiff might, however, walk her dogs once a week to get out of the house.
42 Again, Dr Toy’s detailed reports reinforce the plaintiff’s evidence on all of these matters by recording her complaint of increased pain and the difficulties experienced by the plaintiff at work and during pregnancy and in her day-to-day activities as well as by recording the difficulties the plaintiff continues to report since her son’s birth.
43 In her final report dated 6 January 2016, Dr Toy relevantly records the following matters:
· She reiterates her earlier opinion that the plaintiff has reached her maximum medical improvement.
· On the visual analogue scale, she rates chronic recurrent spinal pain as 8/10.
· Due to breastfeeding, the plaintiff is not taking analgesia or other medication she requires. To manage pain the plaintiff relies on rest, altering her position, attending for treatment to reduce muscle spasm, heat packs, back support cushions and wearing a back brace.
· Pain and disability prevent plaintiff from functioning at the same level as before the injury.
· The plaintiff’s sitting tolerance is 30 minutes, with lifting restricted to 2 to 3kgs.
· The plaintiff is unable to perform heavier domestic duties due to pain and disability and she avoids physical tasks she considers too taxing.
· Lower back pain has worsened since pregnancy.
· Lower back pain has reduced the plaintiff’s ability to exercise and thereby reduce the strength and stability of her spine.
· Spinal pain affects the plaintiff’s sleep.
44 I infer from this evidence that, apart from relieving the plaintiff’s symptoms, ongoing chiropractic treatment may and does reduce her symptoms but is unlikely to further improve the plaintiff’s condition.
Specialist opinion
45 The plaintiff was examined by medico-legal specialists in 2015. Neurosurgeon Mr Brownbill examined the plaintiff at the request of her solicitors, during her pregnancy on 7 July 2015 and subsequently on 1 December 2015. Whereas, orthopaedic surgeon, Mr Carey, examined the plaintiff at the request of the defendant’s solicitors on the one occasion on 13 July 2015.
46 They found no clinical evidence of neurological abnormality. In July 2015 both specialists record complaint of fluctuating low back pain and occasional pain down the right leg.[11] Essentially, both specialists agree that chronic low back pain and intermittent symptoms affecting the plaintiff’s right leg are due to an unresolved aggravation of pre-existing, asymptomatic degenerative changes in the lower back.
[11] PCB 48 and DCB 4
47 In July 2015, both specialists predicted ongoing symptoms and disability for the foreseeable future (“I anticipate that some pain will continue in a fluctuating manner indefinitely” and “Prognosis is for continuation of some discomfort and disability into the foreseeable future…” [12]) in the management of which they endorsed an ongoing exercise regime. Mr Brownbill also envisaged the use of analgesics during periods of pain exacerbation.
[12] PCB 49 and DCB 9
48 Following the birth of her son, the plaintiff relevantly reported to Mr Brownbill that:
· pregnancy had exacerbated pain, which had since settled but not to the level experienced prior to pregnancy.
· Low back pain was often severe and fluctuated, although pain was present most of the time and was worsened by activities such as bending, lifting, walking or prolonged sitting and lifting her baby.
49 On this occasion, Mr Brownbill repeated his earlier opinion, noting also that the plaintiff’s condition is stabilised from a neurosurgical point of view.
50 As to the plaintiff’s capacity to continue working full-time, Mr Brownbill recommended she avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged sitting or standing. On the other hand, despite obtaining a history in July 2015 that the plaintiff struggled by the end of her working week, Mr Carey failed to comment on what, if any, restrictions might apply in future employment. That said, as mentioned, the defendant concedes the plaintiff’s condition has left her with a light work back for the foreseeable future.
51 Both specialists appear to have accepted the plaintiff’s account of the impact of low back pain and disability on her domestic and recreational activities.
52 It is convenient at this juncture to look separately at the consequence specific to the recent pregnancy and birth of the plaintiff’s son.
The decision to undergo a caesarean section and the impact of pain and disability on the plaintiff’s ability to care for her child
53 Notably, the plaintiff attributes her decision not to undergo a vaginal birth to her lower back condition. In her further affidavit the plaintiff explained this decision in the following way:[13]
[13] PCB 10B
3. My chiropractor who has been treating me from the beginning was very concerned how I would cope with labour. She recommended that I have a caesarean section and wrote to my obstetrician and recommended that I undergo a caesarean section rather than proceed with normal vaginal delivery. My obstetrician did not agree but in the end proceeded with the caesarean section as he considered that psychologically it may be more beneficial for me as I was very concerned how I would cope with labour given my back condition. On 14 October 2015, I had a caesarean section…
54 Obstetrician, Dr Regan’s opinion on this issue, on the impact of the condition on future pregnancies and on the plaintiff’s child-rearing capacity is expressed in the following passages from his report:[14]
[14] PCB 43H
It is very difficult to quantify the impact that the back and neck injuries had on Rachel’s pregnancy although she has elected to have an elective caesarean section performed rather than aggravate her chronic lower back condition by labouring. This has been a recommendation put to her by her chiropractor and whilst I don’t feel there is any medical or obstetric reason for this, Rachel still feels that this is the right management for her pregnancy and as such I plan to perform an elective caesarean section upon her.
I don’t feel that the back injury or neck injury is likely to have any impact upon subsequent pregnancies and it is impossible for me to give any assessment as to the likely impact this will have on child-rearing.
55 Without repeating the report in full, on 12 October 2015 Dr Toy relevantly commented on the same matters in the following passages:[15]
[15] PCB 32-33
-due to Rachel’s LBP a natural birth has been avoided due to the potential to aggravate her current condition.…
..
-Although it is difficult to predict with certainty how Rachel’s low back and neck pain will cope with subsequent pregnancies, it is important to inform her that she is high risk at having low back pain due to her injuries and the fact that she has reached maximum medical improvement.
-It would be highly unlikely that considering her obstetrician and myself have recommended a caesarean section for her first birth (due to her low back pain) that she would be likely to be a candidate for a natural birth with subsequent pregnancies.
…
56 During final submissions I was taken to the decision of the Court of Appeal in Kaur v Victorian WorkCover Authority.[16] The appellant swore that she and her husband intended to have a family in the future but failed to call expert evidence of the likely impact of any future pregnancy on her back condition.
[16] [2014] VSCA 300
57 Kaur is, on its facts, clearly distinguishable from the present case. Whilst no evidence was called about the plaintiff’s intention, if any, to expand her family, she gave credible evidence that reduction in her medication regime due to pregnancy had heightened pain and, it follows, diminished her enjoyment of her first pregnancy and that, since the birth, pain and disability continue to restrict her capacity to care for her son and, it follows, diminish her enjoyment of her role as a mother.
58 On the other hand, the evidence of the plaintiff and Dr Regan’s opinion indicate that the plaintiff’s decision to undergo a caesarean section, whilst supported by her husband and, possibly advocated by Dr Toy, was likely based on psychological concerns rather than the risk of further injury. They were understandably concerned that the plaintiff avoid a natural birth where it was believed labour during birth would aggravate lower back pain.
59 Having regard to the evidence of the impact of pain and disability on the plaintiff’s work and other day-to-day activities and the restrictions Mr Brownbill contemplates with regard to heavy lifting, forced spinal mobility, repeated bending or prolonged sitting or standing, I proceeded on the basis that these restrictions necessarily also apply indefinitely to the plaintiff’s caring and parenting activities for her son.
Pain and suffering consequence
60 I now turn to consider the pain and suffering and loss of enjoyment of life consequence for this plaintiff. This encompasses both the plaintiff’s experience of pain and the disabling effect of pain on her physical capabilities (including her capacity for work) and enjoyment of life.
61 I have already summarised in some detail the affidavit and oral evidence of the consequence so described. This evidence is not contradicted by the medical evidence. Rather, in his report Mr Carey tends to diminish the severity of the plaintiff’s experience of pain by using a term such as: “discomfort”.[17]
[17] DCB 9
62 I, nonetheless, gave greater weight to the detailed accounts contained in the plaintiff’s affidavit and oral evidence, where, as in this case, the recounting of her symptoms and circumstances have been accepted as genuine and largely accord with the complaints and symptoms recorded in some detail by the treating chiropractor.
Conclusions
63 In summary, the plaintiff has satisfied me she suffered a compensable permanent aggravation injury to her lower back as a result of the incident on 2 May 2012 and that the impairment consequences of the aggravation injury were as described by the evidence.
64 In assessing whether the pain and suffering and loss of enjoyment consequence of the lower back injury met the test I was required to consider globally all of the pain and suffering experienced by the plaintiff to which the back injury materially contributed. The plaintiff is a young woman. In my view the consequences summarised, the constancy and intensity of the pain described and its interference with the plaintiff’s functioning and way of life represent a serious injury for the purposes of the Act. I found the plaintiff’s approach to particularly her work before and during pregnancy and to the management of pain relief since falling pregnant indicative of a high level of personal fortitude in the face of likely exacerbations of lower back pain due to activities, whether at work, in the home or in caring for her son.
65 I am required by the Act to compare the pain and suffering consequence of the back injury with other cases in the range of possible impairments or loss of body function to determine whether these are fairly described as being more than significant or marked and as being at least very considerable. It is well understood that the test involves a value judgement in which matters of fact and degree and of impression all play a role.
66 Having regard to the pain and suffering and loss of enjoyment of life consequence and bearing in mind the significant of what has been lost, the plaintiff satisfied me that the consequence in respect to the back injury was at least very considerable. In reaching this conclusion, as required, I focused on the consequence of the lower back injury only and left to one side any likely psychological consequence of the injury.
67 The plaintiff has met the requirements of the narrative test. As earlier indicated, I propose to make an order granting leave to institute proceedings for pain and suffering damages only.
0