Degoumois, Terri v Grayling Electrical Pty Ltd
[2009] VCC 820
•10 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MILDURA
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-05744
| TERRI DEGOUMOIS | Plaintiff |
| v | |
| GRAYLING ELECTRICAL PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Mildura |
| DATE OF HEARING: | 1 July 2009 |
| DATE OF JUDGMENT: | 10 July 2009 |
| CASE MAY BE CITED AS: | Degoumois, Terri v Grayling Electrical Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0820 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – lower
back – pain and suffering only – whether consequences to the plaintiff are serious
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC and | J N Zigouras & Co |
| Mr J Goldberg | ||
| For the Defendant | Mr A Moulds and | Hall & Wilcox |
| Ms S Manova | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant in March 2003 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The impairment of body function relied upon in this case is the lower back.
5 The plaintiff relied upon two affidavits and she was cross examined. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities.
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering 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 “at least very considerable” and “more than significant” or “marked”;
(v) I 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;
(vi) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(vii) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
6 The plaintiff is presently aged thirty nine, having been born on 27 November 1969. She was raised on cattle stations in the Wilcannia area and later lived in Broken Hill. The plaintiff is single with two teenage daughters.
7 The plaintiff left school at the age of fifteen after completing Year 10 and has not undertaken any further formal education or training. Since leaving school she has had a variety of jobs, including working as a labourer, factory worker, bar attendant and shop assistant. The plaintiff relocated to Mildura in 1993 and worked on vineyards for about seven years.
8 The plaintiff had experiences of back pain in the past but with chiropractic and other remedial treatment she was able to get over those attacks of pain fairly quickly.
9 In examination in chief, the plaintiff said that she had some flare ups of back pain before the said date. The last such flare up would have been in the two years before then.
10 In cross examination, the plaintiff agreed that these earlier flare ups were similar to the ones she had had since the incident. They involved a few days of rest and some chiropractic treatment.
11 On 18 November 2001, the plaintiff commenced work with the defendant, which operates a retail sales electrical and furniture store. She started work as a casual, part time employee, and later became full time. She worked a normal full time working week with her hours spread out over six, sometimes seven days a week so she could get home earlier to look after her daughters.
12 The plaintiff’s primary job was as the manager for the sale of small electrical goods, such as toasters and blenders. She was responsible for ordering, receiving, storing, displaying and the sale of those goods. She was also required to unload stock as it arrived and use ladders to store boxed electrical goods on shelves and racks.
13 In May 2003, the plaintiff sold a large and heavy model microwave to a customer. As the plaintiff lifted it from a shelf above shoulder height, it was dropping from her hands and to save it “she sort of threw it” onto a low level trolley. As she was doing this, the plaintiff experienced severe pain and discomfort in her lower back (“the incident”).
14 Following the incident, the plaintiff completed the sale. She continued to experience aching discomfort in her back and reported the injury to the manager, Mr Gray. The plaintiff continued doing her normal work but was having difficulty because of aching discomfort and pain in her back.
15 Over the next few weeks the plaintiff’s back pain worsened and she began to experience pain going into her right leg, the intensity of which fluctuated. She had to take care in her movements and at times her pain was so severe she sought treatment from a sports therapist, and later a masseuse.
16 The plaintiff continued her normal work. She was reluctant to seek medical treatment because she was fearful of losing her job as she could not afford to do so, being a single mother with two young children. She underwent manipulative therapy from a masseuse, Mr Chaplin, in mid June 2003.
17 Despite this treatment, the plaintiff’s symptoms continued and became quite severe. She was in constant pain, made worse by sitting or staying static in a position for too long. She began to experience stabbing, shooting type pain when attempting to move her back.
18 By late June 2003, the plaintiff felt she could no longer tolerate the pain and she ceased work.
19 The plaintiff sought medical treatment from the Mildura Base Hospital (“the Hospital”) Emergency Department, on 25 June 2003 where she was treated with Neurontin, Panadeine Forte and Valium and she was told to see her general practitioner and seek specialist medical opinion.
20 At this time, the plaintiff was reluctant to seek further medical attention because she was fearful she might have done some serious permanent damage to her back. Her pain remained acute and unremitting, radiating from her lower back into her buttocks, and she could not obtain any pain relief.
21 On 9 July 2003, the plaintiff saw a general practitioner, Dr Brian Murphy, who arranged a CT scan, which was carried out on 17 July 2003. Dr Murphy then treated the plaintiff with painkilling medication, including M S Contin.
22 The plaintiff continued to experience acute disabling symptoms requiring the assistance of her daughters to help with personal hygiene tasks. She experienced severe back pain going into her right buttock and down the outer side of her right leg into her right foot.
23 On one occasion her symptoms were so severe she required emergency ambulance treatment at home and was taken to the Hospital for pain management.
24 Dr Murphy referred the plaintiff to neurosurgeon, Mr Thien, who recommended conservative treatment. Dr Murphy also arranged for the plaintiff to undergo an epidural injection which was performed at the Hospital on 26 November 2003. Whilst this helped in settling her symptoms, it was a very painful and frightening experience and the plaintiff’s back problems never went away.
25 The plaintiff received Centrelink DSS benefits as her WorkCover claim was rejected.
26 In late December 2003, the plaintiff started light casual work at a pizza bar working for a friend between five and fifteen hours per week. She then obtained work with Tek-Ace Mildura (‘her current employer’) as a casual sales person selling mobile telephones. She commenced fulltime employment with her current employer from July 2004. The plaintiff loves this job and she also loved her job with the defendant.
27 The plaintiff is able to do her current full time job because she is not expected to do any manual work, she can change her position and posture at will and she avoids tasks which may make her symptoms worse.
28 The plaintiff presently manages three departments at Tek-Ace. Six people are under her control, including the call centre which deals with recontracting. The plaintiff works with corporate customers dealing with mobile phones, the internet and landlines.
29 Since the incident, the plaintiff has attempted to remain active and perform most tasks in an unrestricted way; however, she is guarded in more onerous tasks and can experience pain attacks for no apparent reason.
30 The plaintiff has played basketball since primary school and enjoyed the sport. It has always been a major part of her life. In the season that had finished in early 2003, the plaintiff had been “sitting on the bench” for the Mildura Hawks in A Grade, coming up from A Reserve in the Sunraysia Basketball League.
31 Prior to the incident, the plaintiff coached a junior team at the Hawks in which her daughter played. The plaintiff also coached a junior representative Sunraysia team.
32 The plaintiff resumed playing basketball in 2005. She played D Grade for the Hawks most of the seasons until last year, when she had to stop playing because of her back pain. She explained that there is a big difference between the two grades. She could not continue to play A Grade. D Grade was not as competitive and allowed her to play within her limitations. She had remained determined to continue playing basketball because she enjoyed playing very much and she also enjoyed the social interaction involved.
33 In examination in chief, the plaintiff described her inability to continue coaching basketball as “heart breaking”. She hated being at basketball and being unable to play. She hated the fact that the kids she coached were better players than her and she “just had enough; it was upsetting”. Basketball meant a lot to her – “it was a family thing”.
34 The plaintiff stopped playing because she was useless. She could not jump or “take off like the athlete she used to be” as it hurt her spine too much. Her aim had been to play basketball in the Masters’ Olympics.
35 After the incident, when she resumed playing, the plaintiff also resumed coaching juniors, together with her D Grade team until early 2008.
36 One of the plaintiff’s daughters, Taylor, played basketball with the Hawks until the end of the last season. The plaintiff was not sure whether Taylor intended to keep playing this year. The plaintiff’s other daughter only filled in occasionally.
37 In about 2005, the plaintiff also commenced playing netball and played a couple of games in a work team. Twelve to eighteen months ago an actual Telstra shop team was put together and during a season the plaintiff played about seven out of twelve matches. She played most games until the 2008 season.
38 Thus, whilst the plaintiff was playing netball she was also playing and coaching basketball. The plaintiff has played only one game of netball this year in a mixed work competition. She explained she was not the best player so she is called on to play only when the team is desperate.
39 The plaintiff relies upon her two teenage daughters to do heavier housework, with such tasks being much harder for her. She would be unable to complete heavier housework without their assistance. The plaintiff tries to take care with her housework and “does not just bend down to pick up the washing”. Jobs like raking the leaves she spreads over two to three days.
40 In cross examination, the plaintiff agreed she shared the heavier housework tasks with her two teenage daughters who do the bulk of it.
41 In cross examination, the plaintiff said she had been on a number of Australian holidays and that she had flown to various locations.
42 The plaintiff believes she has lost the ability to perform manual work freely.
43 Further, the plaintiff’s personal relationships have suffered markedly and sexual activity is uncomfortable, and at times difficult and less satisfying because of her back pain and leg symptoms and she is frightened of causing further injury. Such is the difficulty she has experienced, she has not pursued relationships with potential partners over the last four years, a situation which is very disappointing and frustrating for her.
44 The plaintiff continues to experience recurring problems and difficulty with her back. There is always a level of discomfort which can be easily stirred up and cause significant problems. She continues to have episodes of acute low back pain which can be quite severe and disabling and come on without warning and for no apparent reason. She generally tolerates the discomfort and pain in her back and gets by but attacks of acute severe pain can quite easily become suddenly worse by activity, whether heavy or repetitive.
45 The plaintiff continues to experience recurrent episodes of right leg pain which can come on suddenly for no apparent reason. When she has this pain she also has some numbness in the thigh, into the right foot and the toes. Standing in one position for too long or sitting or doing tasks involving repeated bending or flexing provokes episodes of acute discomfort and pain, as a result of which she is cautious and at times guarded in her activities and movement.
46 In examination in chief, the plaintiff described how she gets a nasty pain every couple of months or so if she “forgets to slow down”. She suffers from mild discomfort which she would describe as an ache. It does not trouble her to any great extent as she can move. Whilst there is numbness in her right leg, she would, however, feel it if someone stabbed her with a pin.
47 Almost constantly the plaintiff has a niggly achy feeling in her lower spine – there is always a feeling in her back to remind her not to move too quickly. She now has got used to sleeping on her stomach but she can get pain if she twists the wrong way during the night
48 Generally, the plaintiff is able to cope with the symptoms in her back and has learnt to adapt, manage and, when necessary, avoid activities which can make her pain worse and acute.
49 However, if the plaintiff attempts tasks beyond her, she experiences sharp stabbing pain, worse in the lower back, and going down into her right leg as far as the foot. However, at times her symptoms are minimal but it does not take much to set them off to become severe and troublesome.
50 As far as possible the plaintiff avoids medication but when her symptoms are severe she uses Panadeine Forte and muscle relaxants. She tries not to take painkillers as they are addictive.
51 The plaintiff has flare ups from time to time – about every few months. The last time she had a flare up was on a Friday night some time before she went to Melbourne to see Mr Marshall in March 2009. On this occasion she twisted whilst standing from an ergonomic chair. She felt a “red hot striking pain” straight down her back to her toes and she dropped to her knees. That severe pain went when she straightened up but her “usual ache got really bad from manageable to pretty bad” and she had to go back on painkillers and muscle relaxants. She “pretty much lay down for the weekend”. She went back to work on the Monday and she was sore for about a week or so and she “hobbled around a bit”.
52 The plaintiff believes her back is vulnerable and susceptible to episodes of acute low back pain which limit and restrict her activities. Her back remains a constant problem for her and continues to interfere with her daily life and activities.
The Plaintiff’s Medical Evidence
Treating Doctors
53 The plaintiff attended the Emergency Department at the Hospital on 25 June 2003 complaining of back pain. She presented with a seven to eight week history of increasing lower back pain since a twisting injury at work.
54 It was noted the pain was initially minor, similar to other short term back pain, but it had centred, worsening for seven weeks. She was obtaining temporary relief from chiropractic treatment but not lately. It was noted the plaintiff had had multiple previous minor back complaints in the past and that she presented on that day because she was sick of constant pain, particularly worse on the weekend.
55 The clinical records of Dr Murphy were tendered. The typed notes commenced on 9 July 2003, where it was noted the plaintiff had previously seen Dr Berry. The plaintiff was complaining of severe back pain, having been seen at the Hospital on 25 June.
56 The typed notes cover the period from June 2003 until the plaintiff’s last attendance with Dr Murphy on 12 January 2009. The plaintiff no longer sees Dr Murphy and there was no evidence as to who is her current general practitioner.
57 The other relevant entries in Dr Murphy’s notes are as follows:
ƒ
12 August 2003 – “Says her back pain came on lifting a microwave at work. Until September last year was on cannabis all day every day. Says she is in severe constant pain.”
ƒ 13 September 2003 – “Had MRI yesterday - Oxycontin prescribed.” ƒ 6 October 2003 – “In severe pain again since picking up little girl on
Saturday. Went to hospital three times.”ƒ 8 November 2003 – “Was going well and was going to ask to be
reduced dose of Oxycontin but pain got worse.”
ƒ 21 November 2003 – “Query epidural.” ƒ 4 November 2004 – “Tightness and aching in the lower back and
wearing a back brace.”
ƒ 12 April 2005 – “Back played up again a week before Christmas. Been
getting right calf cramps.”ƒ 30 May 2005 – “Back spasm again in the last week. Severe. Lasted
two days.”ƒ 24 October 2005 – “Further low back spasm, came on yesterday but
had still been at work all day.”ƒ 2 July 2007 – “An acute flare up of low back pains with spasms today.” ƒ 5 August 2008 – “Acute chronic low back pains with radiation into the
rear right thigh. Absent right ankle jerk.”58 The plaintiff was also referred by Dr Murphy to Dr Arthur Anderson, and to Dr Perera on 23 November 2003.
59 Dr Brian Murphy wrote to CGU Insurance on 5 March 2004, noting the plaintiff first saw him on 9 July 2003 and he subsequently saw her again on 12 and 19 August, 1, 13 and 24 September, 6 and 17 October and 21 November 2003.
60 When Dr Murphy saw the plaintiff on 12 August 2003 she told him her back pain came on while lifting a microwave at work. He eventually made a diagnosis of sciatica caused by an L5-S1 disc injury, confirmed by a CT scan, and he referred the plaintiff to a neurosurgeon, Mr Thien, who organised an MRI scan. Mr Thien had suggested the plaintiff have an epidural, and that procedure was performed by Dr Perera.
61 Dr Murphy noted that when he last saw the plaintiff on 2 December 2003 she was doing well, was walking freely and had been pain free since the epidural and he had not seen her since.
62 Dr Murphy found it difficult to say whether the plaintiff’s employment was a significant contributing factor to injury, he not having seen her until 15 July 2003 and she did not mention the injury until 12 August 2003. He noted the type of incident she described could certainly lead to a disc prolapse.
63 The plaintiff was referred by Dr Murphy to the Mental Health Department at the Hospital on 12 August 2003, at which time the plaintiff said she was suicidal and blaming it entirely on pain. It was noted she was taking a neighbour’s slow release Morphine.
64 An assessment of the plaintiff was carried out at the Hospital’s Mental Health Services on that date, following which it was concluded by the treating team that there were no current mental health issues independent of ongoing pain and discomfort. It was noted the plaintiff was currently preoccupied with her physical complaints and it was the opinion of the clinical team that the plaintiff required referral to an orthopaedic surgeon or neurosurgeon.
65 Mr Thien wrote to Dr Murphy on 26 August 2003, having examined the plaintiff on referral from him. Mr Thien noted the microwave incident. His examination findings confirmed an S1 lesion with limited straight leg raising and a loss of ankle jerk. He noted there was no objective weakness.
66 Mr Thien commented that the plaintiff’s CT scan suggested an L5-S1 disc injury which was certainly consistent with her symptoms and signs. He suggested she should probably have an MRI scan and said he would be happy to review her following this. There is no further report from Mr Thien nor any details as to any further examination.
Investigations
67 A CT scan of the lumbar spine was carried out on 17 July 2003. It was noted that at L3-4 there was no significant abnormality. At L4-5 there was a minimal annular disc bulge but no disc protrusion or canal stenosis.
68 At L5-S1 there was a prominent right posterolateral disc bulge and possible small disc protrusion and it was noted that this appeared to impinge on the right S1 nerve root on the lateral recess. There was lesser impingement on the left S1 nerve root. There was no critical canal stenosis. There was mild prominence of the facet joints contributing to minor body stenosis of the L5 exit foramina on both sides.
69 An MRI scan of the lumbar spine was organised by Dr Thien on 12 September 2003. There was a small right paracentral disc protrusion at L5-S1 impinging the right S1 nerve and there was a minute right paracentral disc protrusion at L4-5 but it was noted this did not contact the nerve root.
Medico Legal Evidence
70 Mr Peter Scott, orthopaedic surgeon, examined the plaintiff on 2 March 2004 on behalf of CGU Workers Compensation Insurance.
71 The plaintiff told Mr Scott that in about 1997 or 1998 she complained of some back pain due to repetitive bending whilst planting vines whilst employed on a fruit block. She was off work for two days and believed she had made a good recovery and did not make a claim.
72 The plaintiff told Mr Scott that she consulted a masseuse in 1999 on one occasion and her symptoms resolved spontaneously and she had no further back troubles until the incident.
73 On examination, the plaintiff told Mr Scott that there had been marked improvement and in fact she had very little symptoms. She did complain, however, of some numbness over the outer aspect of the right leg and extending over the outer side of the right foot and some mild backache, particularly if she engaged in much bending or lifting.
74 On examination, there was a full range of movement of the lumbar spine but the plaintiff did complain of some minor discomfort at the extremes of forward flexion. Straight leg raising on both sides was to ninety degrees. Mr Scott noted that there was, however, evidence of reduced appreciation of pinprick and touch over the lateral aspect of the right foot extending onto the sole of the foot and there was also an absence of the right ankle reflex. There was no other abnormality of the lower limb.
75 In Mr Scott’s opinion, as a result of the incident, the plaintiff sustained an acute back strain or musculoligamentous injury, together with irritation of an intervertebral disc lesion causing lumbosacral nerve root irritation, particularly on the right side. He considered employment was a significant contributing factor to the development of the plaintiff’s symptoms which were mild in the past.
76 Mr Scott considered there was a mild incapacity for employment and the plaintiff did not have a capacity for her pre accident employment or any other job requiring repetitive heavy lifting or bending.
77 He considered the most important aspect of her ongoing management was for her to maintain a self imposed course of back and abdominal wall strengthening exercises and avoid all aggravation actions.
78 Mr Scott concluded the plaintiff had suffered a bout of backache with the development of a discogenic lesion in the lumbosacral spine causing right sided lower lumbosacral nerve root irritation from which a large measure of recovery had occurred. He considered the plaintiff would be liable to further attacks of backache plus or minus sciatica if she engaged in repetitive bending or heavy lifting in the future.
79 The plaintiff was examined by Mr Brearley, orthopaedic surgeon, on 29 April 2009. The plaintiff gave Mr Brearley a history of the incident. She told him she had had back injuries before the incident but after a few days of rest the back pain would disappear. She had had some chiropractic treatment during those episodes and she had not previously been investigated with x-ray or CT scans and she had had no other injuries.
80 On examination, Mr Brearley noted there was no tenderness or deformity. Flexion was close to normal at eighty degrees. He noted the plaintiff tilted to the right slightly as she flexed completely. Extension was to twenty degrees, lateral flexion was to thirty degrees on both sides, as was rotation.
81 Straight leg raising was to eighty degrees on both sides and Mr Brearley noted the right ankle jerk was absent. Sensation was decreased over the outer side of the right foot and fourth and fifth toes. There was a patch of sensation over the lateral aspect of the right thigh where sensation was reduced also. He noted a report of the CT scan of 17 July 2003.
82 In Mr Brearley’s view the plaintiff was suffering from mechanical lumbar pain as a result of internal disc disruption of the L5-S1 intervertebral disc with nerve root irritation, particularly of the right first sacral nerve root, causing right leg pain.
83 Mr Brearley noted the epidural gave the plaintiff an excellent result and resolved most of her symptoms immediately but she did have some ongoing problems. She had back pain only once every several weeks that was short lived and she had right leg pain more frequently about once a week. He noted she was unable to enjoy her previous recreational pursuits, particularly sport.
84 On examination, the plaintiff complained of occasional aching discomfort in the lower back and occasionally some leg cramp and pain to the outer side of the right foot. The occasional back pain came on if she relaxed and did excessive lifting and repeated bending and stooping, similarly if she played sport excessively. She told Mr Brearley that her back became painful about once every two months or so and that her leg pain came on about once a week and lasted only for a matter of minutes and at times occurred in the middle of the night.
85 Mr Brearley noted the prognosis was fair and that the plaintiff’s back was vulnerable and whenever she did any particular type of heavy work or played sport excessively she had back and leg pain. In his view, the plaintiff therefore needed to exercise caution in the long term and she was likely to have a recurrence of more acute back pain in the future and could then require a further epidural injection.
86 Mr Brearley considered the plaintiff was not fit to return to her former sales position which had some heavier aspects, such as the shifting of furniture and lifting of household items – lifting he thought she should avoid. He considered the plaintiff was able to work in suitable employment provided appropriate restrictions were in place. He noted the plaintiff was doing her current fulltime job without difficulty and that she was not fit for manual work now or in the future.
The Defendant’s Medical Evidence
87 The defendant tendered a letter from Dr Murphy to CGU Workers Compensation Insurance dated 27 January 2005.
88 Dr Murphy noted that he had most recently seen the plaintiff on 4 November 2004, commenting that until that presentation the plaintiff had not been seen by him since December 2003 in relation to her back condition.
89 Dr Murphy thought that the plaintiff was temporarily incapacitated with some low back soreness for a few days in early November 2004 and this may or may not have been related to her 2003 back injury. He noted the exacerbation appeared to have been minor in nature and of short duration.
90 Dr Jackson, psychiatrist, examined the plaintiff on 30 October 2006. In his view, there seemed no reason to doubt the plaintiff suffered a significant orthopaedic back injury in the incident. He thought there was no reason to doubt that she had a chronic back problem.
91 On the information available to him and his examination, Dr Jackson could not find any clear evidence of prescribed or other drug addiction or abuse. He did not believe the plaintiff was suffering from a diagnosable psychiatric illness and noted her personality was of the rather chaotic, impulsive and possibly borderline type, which did not amount to a diagnosable personality disorder.
92 Dr Jackson could find no real evidence that psychological factors, psychiatric illness, and in particular, drug abuse, had played a significant part in the plaintiff’s episodes of back pain and the consequences of that pain. He thought from a psychiatric viewpoint the plaintiff was fit for work and no psychiatric treatment was indicated.
93 Mr Brian Davie, orthopaedic surgeon, examined the plaintiff on 8 November 2006.
94 The plaintiff told Mr Davie that the epidural injection in 2003 had helped her considerably. She told him that over the previous three years she had continued to have a few problems and she described her present complaints of being an occasional pain in the back and leg which might last for a few minutes and occurred occasionally but much of the time she had no symptoms.
95 On examination, Mr Davie noted there was no local tenderness in the lumbar spine and there was good pain free movement and no abnormality of the hips or knees. He found there was altered sensation on the outer side of the right foot but motor power was normal and the right ankle jerk was absent compared to the left. Bilateral straight leg raising was to seventy degrees with a negative straight leg raising test.
96 Mr Davie noted the CT scan of 17 July 2003 showed a small disc protrusion at L5-S1 involving the right S1 nerve. He diagnosed an L5-S1 disc prolapse with right sided sciatica which had responded well to an epidural injection and noted that the plaintiff had made the usual slow recovery.
97 In Mr Davie’s view, the plaintiff was still incapacitated, in the sense that she should avoid heavy lifting, bending and twisting of her back as there was likely to be a strong chance of recurrent sciatica. He thought the plaintiff’s present problem had largely resolved and she had a work capacity and was indeed working satisfactorily at Telstra.
98 He considered the plaintiff did not require any specific treatment but just instituting normal back care exercises. He thought there continued to be signs of involvement at the S1 nerve root with the absent right ankle jerk, but clinically he considered the plaintiff had made a good recovery from the incident. He could not identify any definite evidence of substance abuse.
99 Mr Robert Marshall, surgeon, examined the plaintiff on 12 March 2009. The plaintiff told him that in 1997 or so she suffered some back pain which had been treated by a chiropractor and had been regarded as a slipped disc but that pain had disappeared completely and nothing further happened until the incident.
100 The plaintiff told Mr Marshall that since the incident she had really been pretty good. She was able to play basketball, although she had not actually played for the past year and a half. She had been off work for almost a year after the incident and had a day off only occasionally.
101 The plaintiff told him that she is really quite comfortable now, though two weeks before the examination she did have a bout of quite severe pain. Every few weeks she is likely to get an attack of pain that makes her lie down for a couple of hours, but she noted her daughters are a wonderful help around the house.
102 She told him that she still has some numbness in her leg and foot but it was less than two years ago. She no longer needs to take analgesic medication and really the only problem he noted the plaintiff had was that her back was a little stiff, nothing more.
103 On examination, the plaintiff had a completely absent right ankle jerk which confirmed she had an S1 nerve lesion. Her range of movement through flexion, extension and lateral flexion was normal but she tended to bend rather to the right and she flexed instead of going straight down. Mr Marshall noted the 12 December 2003 MRI scan which confirmed the presence of a paracentral disc protrusion at L5-S1 impinging on the right S1 nerve root.
104 In Mr Marshall’s opinion, the plaintiff had a prolapse at L5-S1 with S1 nerve root pressure and she was in the past suffering from severe S1 sciatica which had now largely subsided.
105 Mr Marshall believed the plaintiff injured herself in the incident, she had been treated conservatively and had an excellent result. She was able to play sport and was working normally and her only problem was she occasionally had a day off when she developed pain.
106 Mr Marshall thought there was very little impairment or loss of body function as a result of this incident, but the plaintiff’s present situation did seem likely to persist for the foreseeable future and he noted she was very well motivated and should continue to do well.
107 Mr Marshall considered the plaintiff’s prognosis should be good and she certainly needed no further treatment, except that she would be advised to lose about twenty kilograms as soon as possible pursuant to a regular exercise program.
108 Mr Marshall thought the plaintiff was not incapacitated for work as a result of the injury and only had a minor incapacity and he hoped her present situation would persist into the foreseeable future. He concluded the plaintiff was certainly capable of undertaking suitable employment and indeed was working normally at present.
Findings
109 I accept that the plaintiff suffered a compensable injury in the incident – namely an injury to the L5-S1 disc.
110 Whilst it is the impairment not the injury that is relevant, I note there is no dispute as to the presence of a lesion at this level, confirmed clinically by the absent right ankle jerk.
111 The issue is therefore one of range - namely, whether the consequences to the plaintiff of the impairment to her lumbar spine when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).
112 The term ‘serious’ requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA, at para 29.
113 The impairment must be permanent, in the sense that it is likely to last into the foreseeable future.
114 I found the plaintiff to be an extremely frank and honest witness. There was no evidence challenging her reported level of pain or disability.
115 I accept that in the months following the incident the plaintiff experienced significant back pain leading to her being prescribed Oxycontin and undergoing an epidural injection organised by Dr Murphy in November 2003 – the details of which are vague.
116 I accept, however, that following this procedure, the plaintiff had a very good result. As noted by Dr Murphy, the plaintiff did not attend him for any back problems in the twelve months following the injection and she had no effects from her back until he saw her on 4 November 2004.
117 The plaintiff has consistently told medico-legal examiners of significant improvement in her back condition following the November 2003 injection.
118 The plaintiff told Mr Scott in March 2004 that there had been a marked improvement following the injection and in fact she had very little symptoms. Mr Davie, in November 2006, took a history that the injection helped the plaintiff considerably. The plaintiff told Mr Brearley she had had an excellent result, and Mr Marshall noted the injection had provided the plaintiff with dramatic relief.
119 One month after the injection the plaintiff was able to commence part time work in a local pizza shop and soon thereafter take up her current job.
120 Since that time, the plaintiff’s day to day problems have been minimal, if any. As conceded by her counsel, her daily level of pain is not significant. However it was submitted on the plaintiff’s behalf, that the flare ups she experiences do meet the test of seriousness.
121 Whilst I accept the plaintiff has flare ups every couple of months, as the plaintiff agreed in cross examination, these flare ups are not dissimilar to those she suffered on a few occasions before the incident, with such flare ups settling down after a few days’ rest and chiropractic treatment.
122 A number of these flare ups have been recorded by Dr Murphy in his notes but they are not the subject of any recent report by him. Following the 4 November 2004 examination, the plaintiff attended Dr Murphy reporting back pain on only five occasions until she ceased seeing him in January 2009.
123 I do not accept that flare ups of the frequency and severity described, and not requiring more than an attendance on her general practitioner, are a serious consequence.
124 Further, there is no medical opinion to the effect that the plaintiff requires ongoing treatment. The plaintiff is presently under the care of another general practitioner from whom no evidence has been provided. She takes very little medication, albeit because she avoids taking painkillers because they are addictive.
125 Whilst the plaintiff has performed physical work in the past, her job with the defendant, which required some lifting of stock, and more particularly her job with her current employer, are ones that are essentially administrative in nature.
126 The plaintiff has shown her ability to work full time with her current employer for over five years, receiving promotions on two occasions. She has been able to perform her present duties without any restriction or modification because of her back condition.
127 The plaintiff was able to return to basketball, albeit at a lower level for three years after the incident and she was also able to coach two teams, and in more recent times, to also play netball.
128 Whilst I accept it would be upsetting for the plaintiff not to be able to continue playing basketball at the age of thirty nine in the local league and that the game played a major role in her life, I do not accept that this consequence is one that can be fairly described as “serious” when comparing this impairment to those in the range of all possible impairments.
129 The plaintiff still shares heavier household tasks with her daughters who do the bulk of them. The plaintiff is able to drive and she has no other particular restrictions. It is really a situation where she has to be careful what she does and avoid heavier tasks.
130 As counsel for the plaintiff conceded, the plaintiff’s “day to day activities are not a picture that gets her over the bar.”
131 Taking into account all the evidence, I do not accept that the consequences to this plaintiff of her low back injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than “significant” or “marked” and at least as being “very considerable”.
132 Accordingly, I dismiss the plaintiff’s application for leave to bring proceedings for pain and suffering damages.
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