Delaney v Lyndoch Warrnambool Incorporated

[2012] VCC 977

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT WARRNAMBOOL

CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No.  CI-10-02613

JOANNE DELANEY	Plaintiff
v
LYNDOCH WARRNAMBOOL INCORPORATED	First Defendant
and
CGU WORKERS’ COMPENSATION VIC LIMITED	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Warrnambool
DATE OF HEARING:	18, 21, 22 and 23 May 2012
DATE OF JUDGMENT:	3 July 2012
CASE MAY BE CITED AS:	Delaney v Lyndoch Warrnambool Incorporated & Anor
MEDIUM NEUTRAL CITATION:	[2012] VCC 977

REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION

CATCHWORDS – Injury to the lumbar spine – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, ss.134AB(16)(b), 134AB(37) and (38).
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; AG Staff v Filipowicz; Arnold Ribbon Company v Filipowicz [2012] VSCA 60; Acir v Frosster Pty Ltd [2009] VSC 454; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering.  Loss of earning capacity claim dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Bird with Mr I Fehring	Stringer Clark
For the Defendants	Mr P Elliott QC with Mr J Batten	Lander & Rogers

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to section 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 first defendant on 6 March and 8 March 2007 (“the said dates”).

2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by section 134AB(37) and (38).

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in section 134AB(37) of the Act.  There, “serious” is defined relevantly as meaning:

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

4       The body function relied upon in this application is the lumbar spine. 

5       The plaintiff relied upon four affidavits and gave viva voce evidence.  She was cross examined.  Dr Mooney, the plaintiff’s general practitioner was required for cross examination.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

Outline of Section 134AB

6       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;

7       The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future;

8       The plaintiff bears an overall burden of proof upon the balance of probabilities.  Apart from the general burden, subsections (19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity;

9       By subsection (38)(c) of 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”;

10      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;

11      Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;

12      Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;

13      Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;

14      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;

15      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

Background and pre incident health

16      The plaintiff is presently aged fifty two, having been born in June 1960.  She has two adult children.  Her oldest daughter, Brittney who is intellectually disabled, lives near the plaintiff in Warrnambool.

17      The plaintiff was educated to Year 10 and married in 1980.  Thereafter, she  worked in a hospital laundry for two or three years.

18      In November 1981, the plaintiff was involved in an accident when she was dragged towards an ironing roller and injured her low back (“the 1981 back injury”).

19      The plaintiff could not recall the diagnosis at that time, save that the doctors thought it was minor.  Thereafter, she did not work for about three years.  The injury had started to heal after the first twelve months and the plaintiff believed she had fully recovered from that injury.

20      In re-examination, the plaintiff described a progression of treatment after the 1981 back injury and she had an exercise regime which she followed.  She recovered and was able to do her gardening, home renovation and move house.

21      In cross examination, the plaintiff said she was not aware the 1981 back injury involved a prolapse.  She was unsure whether she was in receipt of compensation until June 1983.  Her claim was settled by Ryan Carlisle Thomas for $35,000.

22      After giving birth to Brittney in 1986, the plaintiff returned to supermarket work and later had a second child, born in 1989.

23      In 1993, the plaintiff obtained a part time job packing honey, during which time her back was fine.  She continued that work for two years and also cleaned houses.

24      In the mid 1990s, the plaintiff’s marriage split up and she moved to Warrnambool, where she undertook some house cleaning and worked in a hotel laundry and as a motel housemaid at various times before starting with the first defendant.

25      In cross examination, the plaintiff agreed that since 2002 she had been receiving treatment or advice from Dr Mooney about weight issues.  She could not recall being referred to a dietician before the said dates.  She had always had a problem with her weight.

26      The plaintiff could not recall attending Hopkins Medical Centre in May 2002 with a history of backache.  She disagreed that she had been diagnosed with Meniere’s disease.  The plaintiff could not recall being prescribed Voltaren or having an improvement in her lower back as set out in Dr Mooney’s note of 11 June 2003.

27      It was suggested to the plaintiff in cross examination that the improvement noted in June 2003 and the earlier reference to back ache in May 2002 meant the plaintiff had back pain for that year.  The plaintiff could not recall this being the case.  She was not saying it did not happen, but it was not significant.

28      In the financial year ending 2003, the plaintiff received $10,992 in Centrelink payments, together with earnings of $2,100 from cleaning work. 

29      The plaintiff could not recall before she started work with the first defendant that she complained to Dr Mooney of hip pain.  She could not recall on 29 July 2005, when Dr Mooney noted she saw the plaintiff for a migraine, also telling her that she was not able to swing out her left hip and had pain in the left hip, worse at night. 

30      The plaintiff explained she had a poor memory.  She could not remember having an x-ray of her hip in July 2005, or having pain at that time.

31      In 2004, the plaintiff completed a year course at South West TAFE, studying for a Certificate III in Community and Aged Care work.  She did not lodge a taxation return whilst studying.

32      In cross examination, the plaintiff said she ran a business from home called ‘Chemical Free Cleaning’, after she finished the TAFE course.  It involved direct selling and distributing non toxic and non carcinogenic nutritional and personal care products which she obtained for her personal use but also bought for friends.

Work with the First Defendant 

33      In 2005, the plaintiff started work with the first defendant as a personal carer, working between fifty and fifty nine hours a fortnight.

34      In 2005, she received $6,968 in Centrelink payments, $8,900 from the first defendant, and also a carer’s pension.

35      Initially, the plaintiff worked at Lyndoch, where the residents were more independent.  She then worked at both the hostel and the nursing home at the start of 2006.  She worked in the dementia ward known as Tomlinson Ward and also worked in Lake Lodge, where the residents required higher care nursing.

36      In cross examination, the plaintiff confirmed there was a slight change in her initial duties in August 2005, at which time she applied for a permanent part time position in the nursing home with the first defendant.  Her hours became 6.00 am to 9.00 am Monday, Tuesday, Friday and Sunday. 

37      As at the said dates, the plaintiff was working a minimum of twenty five hours a week at a rate of $18.83 per hour with a weekly shift allowance of $167.00.

38      In cross examination, the plaintiff confirmed that from September 2005 until the end of February 2007, she did not have any problems with her work as a personal care assistant.  She agreed that during that time, she saw Dr Mooney for a raft of medical conditions, including her right elbow and migraine type headaches.

39      The plaintiff could not recall seeing Dr Grave in September 2006 complaining of headaches, chronic neck pain, hypertension and obesity.

The Incidents

40      On 6 March 2007 (“the first date”), the plaintiff started work around 8.00 am.  She was working with high care residents at Lake Lodge.  She was walking a patient with a walking frame to the bathroom.  The floor turned out to be wet.  The plaintiff took two small steps and suddenly, as she placed her foot down for the next step, it slid out forward, jarring her whole body (“the first incident”).

41      The plaintiff had a similar experience after she got the patient seated on the toilet.

42      The plaintiff complained about the floor not having been mopped and she dried the floor with a towel, using her feet.

43      In cross examination, the plaintiff confirmed that she slipped forward and did not fall to the ground and she denied telling doctors, such as Dr Grave, that she fell heavily.

44      The first incident occurred on a day when the plaintiff was doing an extra shift in addition to her usual three hour shifts.

45      The plaintiff did not report the first incident at the time and kept on working.  At the end of that day, she went home and crawled into bed, where she stayed for the rest of the day.  Her lower back was sore and her whole body ached.  She put those feelings down to being exhausted. 

46      The next day was a rostered day off and, on the following day, 8 March (“the second date”), the plaintiff went to the Tomlinson Wing to attend to normal duties.  Whilst bending to open a resident’s cupboard, the plaintiff’s back  “went bang” and she could not straighten up for several minutes (“the second incident”).

47      The “bang” was accompanied by pain in the middle of the plaintiff’s lower back below belt level.  Her pain was intense but she just soldiered on with lighter duties and filled in some paperwork and went home. 

48      The plaintiff visited her general practitioner, Dr Mooney, the next morning and told her what had happened.  She thought she told Dr Mooney she then had pain going down the right side. 

49      The plaintiff deposed she was given two weeks off work with total bed rest.  Following review by Dr Mooney, she returned to light duties later in March 2007.

50      Over the next few months, the plaintiff was in and out of work, meaning she was off work and attending to light duties alternately.  She was really struggling and there were days when she could not walk very far.

51      The plaintiff returned to work on 30 July 2007 working two and half hours a day on Monday, Wednesday and Friday, shaving and washing patients and also doing paperwork. 

52      The plaintiff went off work on 12 August until 18 November 2007 due to her back condition.  She then worked the next six months until 20 April 2008 doing similar light duties.

53      The clerical work as part of light duties was just as hard as the other work, as sitting with repetitive movements was very awkward for the plaintiff.  She then went onto light duties, which was just paperwork, but she had the same problems.  Those duties often involved walking for quite a while around Lyndoch looking for people and/or papers.  Walking was “a real killer” then and the plaintiff took further time off work.  She discussed her difficulties with Dr Mooney.

54      The plaintiff has been off work since 20 April 2008, when she stopped work due to her level of pain.

December 2008 Affidavit

55      When she swore her first affidavit on 19 December 2008, the plaintiff was seeing Dr Mooney.  She had physiotherapy from Franco Cavalieri’s practice.  She had had a CT scan of her back and hip which apparently showed problems with her discs.

56      In March 2007, Dr Mooney referred the plaintiff to a physiotherapist, Mr Benson.  The plaintiff attended his practice about one hundred and thirty times in total.

57      After five months of physiotherapy, the plaintiff also had some hydrotherapy with Toby Pettigrew.  At that stage, the plaintiff had not slept for about a month due to back pain.

58      The plaintiff began an intense course of chiropractic treatment with Dr McCann for about a week but that did not give her much benefit.  He recommended the plaintiff undertake a CT scan.

59      The plaintiff then saw Dr Huxtable, an osteopath, who recommended the Metro Spinal Clinic (“the Spinal Clinic”) where the plaintiff was referred by Dr Mooney.

60      The plaintiff was then referred by Dr Mooney to Dr Grave for treatment for pelvic dysfunction.  The plaintiff saw Dr Grave mainly in relation to her hip and he adjusted it manually.  The treatment was expensive and only gave the plaintiff short term relief. 

61      Dr Grave gave the plaintiff some Blomberg treatment as a short term solution but she found this extremely painful and a very embarrassing procedure.  All she could recall with that treatment was that she had a lot of trouble.  She had pain in her lower back which radiated down her legs.  She was unsure whether Dr Grave’s treatment was of any benefit at all.

62      In cross examination, the plaintiff said she did not tell Dr Grave, or did not remember telling him, that while she loved her work with the first defendant, she would rather they just sacked her and let her get on with her life.

63      In re-examination, the plaintiff confirmed that on 14 February 2008 she returned to Dr Grave with a flare up of lower back pain.

64      The plaintiff was referred by Dr Grave to St John of God Health Care in Warrnambool (“St John of God”) for a pain management program.  Payment was approved for a ten day program.  The plaintiff was on the waiting list and she did not know why it was not followed up.  She could recall ringing St John of God and being told to wait her turn.  She thought she made that call within two months of funding being approved and that that was at a time when she was still working part time at Lyndoch.  She was not one hundred per cent sure whether Dr Mooney knew she had not done the program.

65      The plaintiff at that time was also seeing Dr Lenehan, an osteopath in Warrnambool, and Jess Rankin at Hopkins Falls for massage.

66      The plaintiff then took one tablet of Codeine every night and if she woke up, she took a further tablet.  She might take an extra one during the day if she was feeling bad.  Most days, she took Aspro Clear with Coca-Cola which helped relieve some of her pain.  On a bad day, she took a maximum of six Aspro Clear and when her back was not bad, she took two to four tablets.  She also used heat packs on her hip and back.

67      In the morning, the plaintiff’s right lower back area often felt swollen.  She could not wash or dry her feet off after a shower.  On a daily basis, she experienced shooting pain in her lower back, running down to her legs.  Over the period of the remaining day, she generally experienced a lot of pressure in both hips, creating more pain and making it extremely uncomfortable to sit, stand and walk for long periods.  She frequently experienced muscle spasms in her lower back which caused intense throbbing at the top of both legs, radiating down both legs with pins and needles at the bottom and toes of both feet.  She also had back spasms at night which interfered with sleep.

68      Sometimes something as simple as squatting to put the dishes on lower shelves brought on shooting and stabbing pain, making it difficult for the plaintiff to stand up.  There had been times when she had to crawl onto the couch and use her upper body strength to get herself up.  She then lay on the couch to rest her back.  Even something as simple as walking could then be very difficult for her.  She found herself shuffling to walk with extreme pain in both hips, feeling as if she was going to fall.  It was not uncommon for the plaintiff to then to spend an entire day in bed.  She also had a back brace which she sometimes used for support to be able to get into bed.

69      All the pain could affect the plaintiff’s concentration and made it difficult for her to keep focussed, as was the case when she saw Mr Radley for a long vocational assessment, when getting out of the chair created shooting pains in her back from the waist down.

70      The following were activities which aggravated the plaintiff’s hips and lower back: showering and dressing; getting up and down from the couch or chair; standing at the sink to do the dishes; cooking a meal and putting anything in the oven; squatting down to get things out of or into the lower shelves of kitchen cupboards or any low cupboards; carrying a basket of wet washing to the dryer or clothes line; negotiating back steps; putting full rubbish bins out to be collected; vacuuming the floor; cleaning the shower; stripping and re-making of bed; getting into and out of the car; using the clutch in the car; driving for extended periods; walking short distances in the shopping precinct; shopping for groceries and negotiating steps and gutters.  She was then getting home help for an hour a week with the floors being vacuumed and washed.  She was then really worried about not being able to get back to work and was in pain every day and taking lots of medication.

January 2010 Affidavit

71      In January 2010, the plaintiff deposed that with the assistance of Dr Mooney and Dr Lovell, she had endeavoured to pursue a diagnosis for the problems that she had in her hips.

72      In cross examination, the plaintiff agreed she saw Dr Lovell on three occasions between August to October 2008.  She complained to him about her back. 

73      In January 2009, Dr Lovell examined the plaintiff’s left hip by way of anaesthetic and cortisone.  Following that procedure, the plaintiff got short term relief in her hip but she was not completely pain free in her back after that procedure.  The plaintiff confirmed she had three areas of pain: her back and both her hips.  After the incidents, she had pain from the waist down. 

74      The plaintiff was eventually referred by Dr Lovell to an orthopaedic surgeon, Mr Bare, for treatment of her hips.

75      The plaintiff had an MRI scan of her left hip and then underwent laparoscopic surgery from Mr Bare on 22 June 2009 (“the left hip surgery”).  The left hip surgery involved the repair of a labral tear and Mr Bare also ground away some excess bone material.

76      As a result of the surgery, the plaintiff’s left hip was still very painful although the movement was a little better.  The pain was a little less, say, five per cent or so, down the left side of her outer hip.

77      The plaintiff’s right hip then continued to be also as problematic and Dr Mooney arranged for an MRI scan.

78      The plaintiff underwent a physiotherapy consultation while in hospital for the left hip surgery and was told that she would need a left hip replacement sooner rather than later.

79      In an attempt to improve her situation, under the guidance of Mr Cooney, physiotherapist, the plaintiff was then walking three times a week for about thirty minutes. 

80      The plaintiff continued to see the myotherapist, Jess Rankin, once or twice weekly, along with Dr Mooney.  She continued to take Codeine and Aspro Clear.  Otherwise her injuries remained essentially the same. 

81      The plaintiff had spent a lot of time in bed, having not worked for two years, and that had isolated her from colleagues and friends.  Her high level of pain also prevented the plaintiff from socialising.  She was worried about her future and was hopeful at some stage she may be able to return to work on light duties on a part time basis but was then unable to do so.

February 2011 Affidavit

82      As of February 2011, the plaintiff was living alone.  Her position in relation to her injuries was basically unchanged.

83      The plaintiff continued to see Dr Mooney once a month for certificates and also prescriptions and her role was basically pain management.  The plaintiff usually attended Mr Cooney once a week. 

84      The plaintiff also attended Jessica Kerr once a week for Pilates, myotherapist Jessica Rankin once or twice a week and she had three one hour sessions of hydrotherapy.  The plaintiff took Codeine most nights and Aspro Clear.  She applied heat packs when the pain was intense.  There were times when she preferred stronger painkilling medication but she was allergic to it.

85      The plaintiff deposed that not being able to work caused her a great deal of distress.  It had always been her intention to do nursing and she had applied to Warrnambool TAFE for entrance to a Division 2 Nursing course before the incidents, while working for the first defendant.

86      The plaintiff continued to have a very restless sleeping pattern, waking nearly every night.  Sometimes she just stayed in bed and watched television, otherwise she got up and had a drink and went to the toilet or did some work on the computer.  She woke at various times, usually some time between 7:00 am and midday.  Sometimes she did not get out of bed.  She continued to have difficulty with all the tasks described in her previous affidavit.  She continued to leave some of the more difficult work for home help.

87      The plaintiff missed her garden and had moved into a unit because it did not involve any gardening.  She did not have any social life of any significance, having gone out in the evening only three times in the previous year.  She could not sit through a film and because of hip problems, she had difficulty walking up steps.  She also found it impossible to go out for an evening meal.

88      While she used to enjoy swimming in the sea, the plaintiff now found it impossible.  If she tried swimming, the pain in her lower back and hips became unbearable.  She also found it difficult walking in the sand or on any other unstable ground.

89      The plaintiff had left her church group because she could not participate in activities and there was some stigma attached to being injured.  In early 2010, she was only attending about one out of three meetings.  By the second half of the year, the plaintiff was not going to any.

90      The plaintiff missed being able to do more for Brittney.  Prior to being injured, the plaintiff took her shopping and drove her to her appointments, helped her with cooking and did some of her housework. 

91      The plaintiff also used to drive Brittney to visit family in country Victoria.  She could not do any of that now except for taking Brittney to the occasional appointment in Warrnambool.  The plaintiff was not able to go camping with Brittney that year.  All the plaintiff could do was sit on the phone and be available if Brittney wanted her to arrange help from one of the other people at the camp.

92      The plaintiff could have a good day and go shopping but by the end of it, she was tired or exhausted.  She had ongoing difficulty going up stairs.  She used to enjoy musicals at Warrnambool or Melbourne but because of her difficulties it would be extremely difficult to attend.  The plaintiff also used to host dinner parties but there was no way now she could cook for and clean up after a number of people and she mostly ate prepared meals.

93      The plaintiff thought about some sort of work all the time but having regard to her constant pain, limitations in standing, sitting or walking, and the limitations in her personal and domestic life, frankly she could not think of work she could realistically do.  It had been suggested she do some retraining but she would find it difficult to sit in a class for longer than thirty minutes or so.  If she could do any retraining, she would be doing care subjects to work within the medical area, probably in an administrative position.

94      The plaintiff’s condition changed from one day to the next.  How she felt depended on what she had done the previous day.  There were some days when she was actually bedridden.  She could not guarantee to an employer that she could turn up at a regular time four or five days a week.  She had a good day, but only about one a month.

February 2012 Affidavit

95      The plaintiff’s last affidavit sworn on 9 February 2012 confirmed ongoing treatment and medication. 

96      The plaintiff had further surgery on her right hip in March 2011 from Mr Bare.  She saw him after the right hip surgery but was not at that stage intending to return to him unless she had further difficulties. 

97      In re-examination, when asked about the onset of right hip pain, the plaintiff said that she had always had pain from the waist down and always had pain in her right hip.  She agreed there was a worsening in her right hip pain in April 2010 that sent her to Dr Mooney and for referral to the orthopaedic surgeon.

98      This worsening occurred after the plaintiff was walking along the Warrnambool promenade on a six to seven kilometre walk to catch up with her church group which was having a function.  The plaintiff’s pain progressed during this walk and caused her to stop and rest for the afternoon and she later drove home.

99      The plaintiff disagreed she was power walking as she was not carrying weights whilst walking.  She agreed she was walking at a pace to reduce her weight.

100     The plaintiff deposed she thought the right hip surgery had helped, but she is still very restricted.  Standing for more than twenty to thirty minutes now will cause an increase in pain.  She can walk on flat surfaces perhaps for half an hour and then has to rest.  Also, sitting is quite difficult because the pain gets worse sitting in the one position.

101     The plaintiff’s pain in both hips also spreads down the leg to as far as the foot and it was there most of the time.  She also gets pins and needles in both feet most of the time and gets back pain two or three times a week, particularly if she does too much or is not careful.

102     In cross examination, the plaintiff agreed she told Dr Mooney that after right hip surgery she had marked improvement with a significant improvement in the range of pain free movement and flexibility in her hips.  She disagreed however that she was able to sleep pain free for eight hours a night, five days a week.  She agreed she was having problems with her weight, which then varied between 107 and 110 kilograms.

103     The plaintiff has continued to improve in her hips.  She still gets migraines.  She does not believe she gets neck pain but has some tension in her neck accompanying the migraines.

Work Future

104     The plaintiff deposed that as of early 2012, she could not work at all and had been unable to do so since April 2008.  Given the deterioration in her condition and current state of restriction, the plaintiff did not believe she would ever be able to work again. 

105     The plaintiff tested her standing tolerance on her return to work with the first defendant and she had problems with walking and the paperwork

106     She had not been referred to Workable for over a year and had no further rehabilitation or retraining since she last saw them in early 2010. 

107     In cross examination, the plaintiff confirmed that she has not registered for work or looked for any work since leaving the first defendant’s employ.  She disagreed it was in her legal interests not to return to work. 

108     The plaintiff has discussed with Dr Mooney returning to work.  She told Dr Mooney she is motivated to return to work and would do so if she had the capacity.  The plaintiff does not ask Dr Mooney for any current work capacity certificates.  She sees Dr Mooney to be assessed. 

109     When asked in cross examination what she was doing to try and get back to work, the plaintiff said she had been attending physiotherapy and hydrotherapy to try and help her with pain and make her back stronger.  If it was noted by the vocational assessor that the plaintiff was prepared to do anything to get back to the workforce, that was true, but according to her work capacity. 

110     When asked further about that vocational assessment in February 2010, the plaintiff agreed she had continued to improve in certain areas.  It would be right at the time of that assessment that the plaintiff was not thinking about what type of work options were there in the future.  She disagreed she was a closed book to any return to work.  She could not recall specifically jobs that were then suggested, but could remember a discussion about training perhaps for clerical or sedentary or computer work, but she had not taken any steps for retraining in that regard. 

111     The plaintiff did not think she told the vocational assessor that she had thought about the possibility of completing a long term TAFE course in the future.  She had made some enquiries in relation to a disability or case management role some years ago, but could not recall when, perhaps at the time she had stopped work with the first defendant.

112     In cross examination, the plaintiff was taken to her written application dated 29 August 2005 for her job with the first defendant in which she described herself as highly motivated.  In terms of her post injury condition, the plaintiff explained she was still highly motivated by being proactive with her medical team’s recommendations.  She had been advised by her treaters that she could not go back to work and that she required treatment.

Current Activities

113     The plaintiff deposed that she is now able to do the shopping as long as she only takes small loads but could not do it in one go.  She drives locally but is careful doing so.  She cannot undertake a longer drive without repercussions and has lost quite a lot of friends because she cannot visit them and is now quite isolated.

114     Prior to the incidents, the plaintiff used to be a very keen gardener and had her own vegetable patch and was active in the garden.

115     Prior to the incidents, the plaintiff used to love cooking and entertaining and she had a dinner party at least weekly.  She has not been able to enjoy these activities for a long time.  She certainly has not had a dinner party last year or this year.

116     In examination-in-chief, the plaintiff described how the Sunday before the hearing, her back was so sore after she cooked a meal that she spent the day in bed. 

117     In cross examination, the plaintiff confirmed that walking was still a real killer some four years after the incidents.  She can go for short walks.

118     The plaintiff does not still knit regularly, last knitting a scarf about two years ago.  It was just a part time hobby and she used to knit scarves to sell in a local shop.

119     The plaintiff was cross examined about her involvement in the church.  She joined the Bible Place Fellowship three months after moving to Warrnambool.  When she told Dr Mooney the minister was hypocritical, she meant that she was criticised at the church for not sitting and standing at the appropriate times in the healing ceremony because of her back pain.  As she was not fit to  take a healing, the plaintiff left the congregation.

120     The plaintiff agreed the Bible Fellowship used to be a significant part of her day to day life and her social life.

121     The plaintiff confirmed activities as simple as just picking up a dropped purse could still cause her a great deal of problems.

122     The plaintiff has to slightly lean to get something out of the boot of her Suzuki Swift.  The more difficult house cleaning is done by home help, once a fortnight for an hour.  The plaintiff changes the beds and washes the dishes but sometimes leaves the dishes in the sink for a while.  The plaintiff required assistance when she last moved house, having been able to move herself before the incidents.

123     In cross examination, the plaintiff agreed she receives $508 a fortnight from Centrelink as Brittney’s full time carer.  Centrelink is aware the plaintiff receives $370 a fortnight in weekly payments and is certified by Dr Mooney as not having a current work capacity. 

124     The plaintiff lives close to Brittney and the hours she spends with her vary.  The plaintiff is there to make sure Brittney takes her medication and she gives Brittney advice about activities around the house.  Brittney can cook simple meals.  The plaintiff helps her with financial matters and her bills.  Brittney can shower and is mobile and her disability is purely intellectual.  She cannot drive.   

125     Brittney is not up to going down the street to do some shopping or have a coffee and prefers to meet with the plaintiff at home.  She can get public transport.  Previously, Brittney lived with a girlfriend, but that was more trouble than it was worth as they often had disagreements.  When Brittney lived with the plaintiff, she was violent towards the plaintiff.

126     The plaintiff’s son lived with the plaintiff until July 2010 when he left home to get married. 

Current Treatment and Medication

127     In the last month, the plaintiff has taken Codeine and Aspro Clear.  If she does not have to travel anywhere she takes Codeine constantly, depending on her pain level.

128     Dr Mooney continues to prescribe Codeine and manages the plaintiff’s pain and her health generally. 

129     The plaintiff now has physiotherapy once a fortnight from Mr Cooney which eases her pain in the lower back.

130     The plaintiff currently attends hydrotherapy three times a week at the Archie Graham Centre, which is a short pool.  She does not go swimming there.  The three one hour sessions of hydrotherapy are being funded by the second defendant.

131     The plaintiff sees Jessica Rankin once or twice a week for deep tissue massage at home, loosening up her spine and glutes and then the plaintiff goes to Pilates in the afternoon. 

132     In the last two years, the plaintiff has had short term improvements that get her through day to day life.  She has had improvement in her hips but she has varying back pain continually.

Surveillance

133     The first film of just over two minutes was taken on 18 and 25 February 2008.  On the first date, the plaintiff was shown walking slowly for a short time and later getting into her Suzuki and reversing in a car park.  The plaintiff agreed she could drive without restriction around Warrnambool. 

134     On 25 February 2008, the plaintiff was shown standing in the aisle of a shop holding her back with her right hand for about a minute. 

135     There was thirteen minutes of film taken on 25 August 2008.  At 11.24 am, the plaintiff was shown entering off street parking off Ferry Street, Warrnambool.  She was parked in a disabled space and then walked around relatively slowly, going into a number of shops. 

136     When it was suggested to the plaintiff in cross examination that she was walking without apparent difficulty or disability, the plaintiff said she “was walking”.

137     On 19 October 2010, there was two minutes of film of the plaintiff walking around the Warrnambool shops.  She again said she “was walking”. 

138     On 2 February 2011, the plaintiff was shown with a friend standing next to her car.  The plaintiff was then shown having coffee, sitting for about ten minutes.  She has since had a falling out with that friend. 

139     There was further film of about five minutes’ duration of the plaintiff walking around the Warrnambool shops taken on 20 and 21 September 2011.  When the plaintiff again said she “was walking”, she explained that she was not walking fast – she was walking at a pace that she could cope with her painful back. 

140     The plaintiff was shown briefly on 13 April 2012 at K-Mart and looking in the window of a jewellery shop.

The Plaintiff’s Medical Evidence

141     Dr Mooney reported on 4 September 2007 that the plaintiff presented on the second date with a history of acute back pain.  The plaintiff told her that two  days earlier she had slid twice along a bathroom floor at work and jarred her back on the right.  She had then had a day off and spent most of it in bed and returned to work on the Thursday.  When she lent over to get something out of a low cupboard, she felt her back give way and was in acute pain thereafter.

142     After the initial examination, Dr Mooney arranged for a CT scan.

143     Dr Mooney reported that the plaintiff had a history in 1981 of a manipulation under general anaesthetic but had been pain free since.

144     When reviewed on 15 March 2007, the plaintiff had had a gradual return to work as she felt there had been some improvement.  On 22 March 2007, she had been back at work for four days for three hours and felt that aggravated her pain.

145     Dr Mooney detailed the history of attendances until 27 July 2007.  She then foresaw a gradual improvement with the plaintiff increasing activity, particularly at the hydrotherapy pool, a further reduction in her weight and especially strengthening of her muscle groups.

146     By that stage, the plaintiff had been referred to West Coast Physiotherapy and she had also had hydrotherapy.  Dr Mooney noted there was still some tenderness in the plaintiff’s right sacroiliac joint.

147     Dr Mooney reported again on 4 April 2011.  The plaintiff then was recovering from the right hip surgery and Dr Mooney was hopeful that this would improve the plaintiff’s quality of life, reduce her pain and allow her to resume some non weight bearing work.

148     Dr Mooney noted however, as the plaintiff’s recovery over the four years had been more complicated than initially thought, with persistent pain, social isolation and restriction her activities had flattened her mood and had secondary effects on her blood pressure and migraine history, but despite this, Dr Mooney noted the plaintiff had maintained an optimistic attitude and reinforced her computer skills. 

149     In her report of 6 January 2012, Dr Mooney noted that the plaintiff had had a successful result after surgery to both hips.  She was able to attend for massage, physiotherapy and hydrotherapy within a month and there was a marked improvement after other interventions.  The plaintiff was able to increase and maintain her exercise program and could sleep pain free for eight hours, five nights a week. 

150     Dr Mooney noted, unfortunately the plaintiff’s weight was still fluctuating around 107 to 110 kilograms.

151     There was an exacerbation of right hip groin pain whilst walking in July 2011, so the plaintiff started Pilates and experimented with the use of a swivel chair in the car.  This eased the groin pain but flared up the hip pain.

152     The plaintiff added in pool running at hydrotherapy in August 2011, which aggravated flexion of her right hip which had since resolved.

153     Dr Mooney advised, in all the plaintiff had made significant improvement in her range of pain free movement and flexibility.  She noted the plaintiff was vulnerable to acute exacerbations and simple actions, such as picking up a dropped purse could cause incapacity.

154     Dr Mooney could not envisage the plaintiff returning to any form of work that required prolonged standing or sitting.  However, she felt if the plaintiff had a flexible environment where she could organise her duties and could move around as needed, she could work on a part time basis.  To that end, she thought the plaintiff could now look at a retraining program, as her previous work in personal care was no longer a viable option.  She noted the plaintiff had some computer literacy and that was certainly an area that her skills could be extended.  She noted the plaintiff had expressed an interest in teaching, but that would entail too much sitting and set periods of work, neither of which would be suitable.

155     Dr Mooney suggested a flexible retraining program, of five to six hours per week for three months, and then review – a time frame which would allow the plaintiff to maintain her exercise program and regular massage.

156     Dr Mooney noted the plaintiff’s recent MRI scan highlighted how vulnerable her back was, with lying in the scanner for an hour causing significant pain, muscle spasm and difficulty mobilising.

157     Dr Mooney was cross examined in relation to various clinical notes.

158     Dr Mooney agreed the plaintiff was complaining of ongoing headaches in August 2000 and that on 16 March 2001, she reported a continual headache.  In March 2001, it was noted the plaintiff was getting spasms in the back.

159     In May 2002, there was a note of the plaintiff taking up a new cleaning job in a chiropractic practice.  At that time, her back was aching and was fixed by chiropractic treatment.

160     Dr Mooney knew the plaintiff had a history of an accident at work in the early 1980s after which she had a manipulation under anaesthetic, but the plaintiff said after that she had not had any further problems.

161     An entry on 11 June 2003 set out “improvement with lower back”. 

162     Dr Mooney agreed it could be inferred from that entry there was an ongoing back problem from May 2002.  She confirmed that Voltaren and Celebrex were prescribed for the plaintiff’s back in June 2003 and x-rays at that time of the thoracic and lumbar spine were normal.

163     Dr Mooney then agreed that the plaintiff obviously did have some ongoing problems with her back but when she had spoken to the plaintiff about it, the plaintiff said this was not the case and her back had settled down and it had not been an ongoing problem.

164     Dr Mooney agreed that there was a possibility that from time to time a person with a pre-existing history of low back pain might have some flare ups.

165     Dr Mooney thought there was a prolapse shown on the March 2007 CT scan.  In her view, the later normal finding on MRI did not mean there was not a prolapsed disc at the time of the first scan. 

166     Dr Mooney maintained this view despite the radiologist’s report.  She did not know that she would totally agree that the findings on the March CT scan were consistent with a forty seven year old obese woman with a previous back history.

167     Dr Mooney agreed there was no prolapse seen in the October 2007 MRI.  She agreed the radiology was consistent with the plaintiff’s age, work and weight.

168     Dr Mooney explained that she did not refer the plaintiff to an orthopaedic surgeon as she got more effective results with hands on treatment.

169     Dr Mooney agreed that she accepted the plaintiff’s subjective complaints of pain and had not “judged” her.  She found the plaintiff’s symptoms had been consistent over the last five years.  There had never been a time that she doubted the plaintiff had not been in significant pain.

170     Dr Mooney thought the plaintiff was not necessarily physically caring for her daughter Brittney but managing her domestic situation and finances.  Dr Mooney agreed she was giving the plaintiff certification for DSS as a full time carer and also she was providing no current work capacity certificates for WorkCover.

171     Dr Mooney confirmed that she gave the plaintiff certificates relating to her back condition in support of a claim pursuant to an insurance policy.  Dr Mooney thought the plaintiff basically was unable to work because of her back.

172     Dr Mooney could not remember the plaintiff complaining of pelvic pain three weeks before the incidents.  Dr Mooney explained Dr Cameron’s noted a pelvic problem which was more gynaecological in nature.  An ultrasound was organised in relation to an infection rather than a structural problem with the plaintiff’s pelvis.

173     Dr Mooney agreed she had referred the plaintiff to Dr Grave before the incidents for treatment of her headaches.

174     Dr Mooney confirmed that after the incidents she referred the plaintiff to Dr Grave to ease her back pain.  She explained part of the pelvis is where the sacrum joins on so the various parts of the body in that area are very closely linked.

175     Dr Mooney agreed that Dr Graves had advised her in February 2008 that mobility in the sacroiliac joints, pelvis and lower lumbar spine was maintained and that there were no features of pelvic dysfunction.  However, when she saw the plaintiff around that time, the plaintiff had had a lot of pain from the injection.

176     Dr Mooney agreed that the plaintiff had had a raft of conservative treatment since the incidents without any admitted prolonged improvement.

177     It was suggested to Dr Mooney the plaintiff had not complained of her hip until 2009.  Dr Mooney explained that it was not always possible draw the margins between hip pain and pain emanating from the back and originating from the back. 

178     Dr Mooney thought the plaintiff was fairly motivated to be more active and regain her life but she complained of ongoing pain.  She could not remember the plaintiff ever saying she wanted to be sacked.  The plaintiff wanted to do something and she enjoyed her work.

179     Dr Mooney was taken to a note of 10 April 2008 where it was set out “Teary with painful hips”.  Dr Mooney said she was not concerned about the plaintiff’s mental health in early 2008.  At that time, the plaintiff wanted to get on with her life.

180     Dr Mooney thought the labrum tear shown on investigations would not be expected simply in an older person and it was a result of an impact type injury.

181     Dr Mooney agreed that the 2005 entry indicated a pre-existing hip problem.  She agreed that the tears were present but they indicated no structural abnormality.  She also agreed that with a fifty one year old morbidly obese woman, you would expect there to be some degenerative pathology in the spine and quite possibly bilaterally in the hips.

182     Dr Mooney agreed there was no abnormal pathology in the plaintiff’s lumbar spine that was inconsistent with a person of her weight and age.

183     Dr Mooney said she incorrectly omitted the plaintiff’s back pain when writing to CGU in November 2009 requesting the assistance of a dietician.

184     The plaintiff had always complained of three sources of pain, being her back and two hips.  Dr Mooney agreed weight was a significant contributing factor to the plaintiff’s condition.  She agreed that at the end of 2007, the plaintiff had improved somewhat.

185     Dr Mooney always seriously encouraged a return to work by the plaintiff.  The problem with the plaintiff getting work was her varying symptoms.  Dr Mooney thought the plaintiff was a bit more practical, from the point of view if she could not manage her daily work at home on a consistent basis then trying to get into the workforce was probably not going to be a practical consideration. 

186     Dr Mooney confirmed the plaintiff had discussed with her a desire to do retraining and with some flexibility she could do some teaching in personal care.

187     Dr Mooney confirmed the plaintiff had complained to her about problems with her church and she knew the plaintiff had problems getting in and out of the car.

188     Dr Mooney agreed that the plaintiff’s recovery had been complicated by litigation but not by secondary gain.  All the treatment that had been prescribed had been “honest” treatment.  There was a marked improvement after the hip surgery and the plaintiff made significant improvement in a range of pain free movement and flexibility as Dr Mooney reported in January 2012. 

189     Dr Mooney agreed she then started talking about the plaintiff being provided with a flexible environment and being potentially fit for work on a part time basis.  She confirmed however the plaintiff could not do her old job and that she could not do any work until she had shown consistent improvement.

190     In re-examination, Dr Mooney confirmed the plaintiff’s continuing vulnerability to further onset of pain and acute exacerbations and that simple actions could cause incapacity, such as when the plaintiff bent and picked up her purse.

191     Dr Mooney confirmed the plaintiff’s genuineness and that there was nothing in cross-examination that had changed her view.

192     Dr Mooney confirmed her records showed constant treatment for the plaintiff’s back pain following the incidents.  She confirmed the plaintiff’s weight does not help her condition.

193     Dr Mooney confirmed there was no secondary gain involved with the plaintiff.  She had lost a lot more than she had ever gained from her injury.  She had lost a lot in terms of self esteem and she was socially more isolated.  She was restricted with the pleasurable things she used to enjoy doing because of pain. 

194     Dr Mooney agreed that the plaintiff would have to be certified to have a work capacity so that she could be fit for those various jobs suggested.

195     Dr Mooney agreed she would defer to an orthopaedic surgeon such as Mr Schofield in relation to interpretation of the plaintiff’s back injury.  She confirmed she still thought the original CT scan showed a prolapse.

196     Dr Mooney agreed that the plaintiff would be unreliable on a day-to-day basis for work.  Realistically she would like to think that the plaintiff could return to work in the foreseeable future but the experiences over the last four or five years would say it is a small chance.

197     Dr Murray Grave reported in April 2008.  The plaintiff first presented to him in relation to her injury on 22 October 2007.

198     Dr Grave then noted the plaintiff hurt herself at work by falling heavily twice and on the day she returned to work, she had felt her back go and she developed acute back pain and could only move with difficulty.  Her pain was affecting her from the waist down.

199     Dr Grave reported the plaintiff had a past history of lumbar injury when she was working in a laundry and got pulled into an ironing machine.  She had lumbar pain like a strain and ultimately underwent an MUA procedure by Mr Scot in Ballarat and she did not have any further pain in relation thereto for over twenty years. 

200     Dr Grave noted the x-ray and CT scan of March 2007.  He thought the initial CT scan showed disc bulging particularly at L4-5 on the left as well as calcification of that particular disc.  He also noted there were some moderate degenerative changes in the facet joints in the lumbar spine again, particularly at L4-5 and L3-5.  He also looked at the MRI results, which again showed degenerative changes in the lumbar spine but the previously noted disc bulge at L4-5 had improved and was not discernable, indicating resolution as a bulging disc at that level over a seven month period since the original CT scan.  On the October 2007 MRI scan, there was no disc protrusion evident at any level and no evidence of neural compression.

201     Following examination, Dr Grave thought the plaintiff was suffering from pelvic dysfunction with bilateral sacroiliac joint dysfunction.  He suspected she originally had a lumbar disc injury which contributed to her pain.  He noted the bulging disc gradually improved over the following several months.  He reported provocation testing of the lumbar spine was not particularly painful; however, similar testing of the pelvis caused marked pain.  The plaintiff also had associated with the pelvic dysfunction bilateral gluteal muscle trigger points.

202     On neurological examination, there was normal tone, power and reflexes, although the plaintiff complained of decreased sensation over the L4, L5 and S1 dermatomes in the left leg in a non dermatomal pattern.  She could flex to forty degrees, extend to twenty degrees which was painful, and side bend to the knee bilaterally.  She also had bilateral pelvic dysfunction with bilateral sacroiliac joint upshears.  Various tests were positive and hip abduction was positive bilaterally.  The plaintiff also had positive trigger points in her gluteal musculature.  Straight leg raising was to ninety degrees bilaterally. 

203     Dr Grave detailed how the plaintiff was initially commenced on Endep and proceeded to pelvic manipulation and trigger point injection with repeat manipulation with a significant reduction in pain and improvement in function.  He noted the attendances until the last consultation on 6 March 2008, when the plaintiff was stating she was feeling relatively better with respect to her backache and gluteal pain and still having some difficulty lying on the left side, and there was an area of discomfort in the lower lumbar spine, which had been catching with forward flexion. 

204     Examination then demonstrated that the tenderness appeared to be at the level of L5 and was about the interspinous ligament and its attachment to the L5 spinous process.  The ligamentous attachment was treated by delivering some anaesthetic and Depo-Medrol onto the ligament.  Further examination demonstrated the plaintiff’s sacroiliac joint movement was good and there was no evidence of pelvic dysfunction.

205     Dr Grave remarked of more concern at that time was the plaintiff’s mental health.  She was then quite teary and fragile from dealing with the Lyndoch management in relation to her WorkCover and June return to work.  She indicated her injury had taken a personal toll on her and she felt stressed and pressured by the slow recovery on one hand and the desire to recover quickly and the pressure that this created for her and her employer on the other.

206     Dr Grave reported that while she loved her life at Lyndoch, the plaintiff would rather that they just sacked her and she would be able to get on with her life.  They had a discussion and agreed that the plaintiff would benefit from counselling.  Given that she had chronic pain, Dr Grave felt it would be wise for her to be admitted to the pain management program at St John of God. 

207     Dr Grave thought that the plaintiff sustained an injury to her lumbar spine in the incidents.  In addition, clinically, she had also developed pelvic dysfunction with a diagnosis of lumbo pelvic pain with referred pain into the lower limbs.  He noted she was treated with Endep, and later Lyrica, to gain better pain control, but neither medication was of assistance.  She was treated with a combination of pelvic and lumbar manipulation, as well as nerve injections and her pain significantly improved with that approach. 

208     Dr Grave thought the plaintiff was suffering from chronic lumbo pelvic pain and would benefit from the pain management program and recommended St John of God.  He noted she found the process of having a significant injury with chronic pain difficult and it had become emotionally wearing and the process of rehabilitation back to her normal work was at times frustrating. 

209     Dr Grave then thought the prognosis was guarded and that the plaintiff would need to take care with any lifting, bending, pushing or pulling in the near future.  He thought it would be good for her to try and idealise her weight and improve her fitness.  He noted she deserved cooperative support from her employer.  The plaintiff loved her work and Dr Grave found her to be genuine and motivated to make a good recovery.

210     Mr Huxtable, osteopath, reported in May 2008 that without any significant radiological findings, it appeared the plaintiff's diagnosis could possibly be a sacroiliac lesion.  He advised the only definitive way to diagnose the problem was to have a painkiller injected into the joint and if the pain dissipated it could be assumed that this was the diagnosis.  He arranged for the plaintiff to consult the Spinal Clinic, leaders in that field. 

211     In his report of February 2010, Mr Huxtable diagnosed the plaintiff’s condition as acetabular labral tear, ganz lesion – femoroacetabular impingement, trochanteric bursitis and L3-4 disc bulge – biomechanical lower back pain.

212     Mr Huxtable thought the plaintiff was unfit for pre injury duties for the foreseeable future and from a physical basis only, he believed this incapacity was permanent.  He considered the physical injuries the plaintiff had sustained had caused a huge restriction in relation to social, domestic and recreational matters. 

213     Mr Huxtable advised ongoing physical therapy to reduce pain and help self manage, possible surgery, i.e.  hip replacement, ongoing medication and general practitioner visits, and physical therapy to manage ongoing musculoskeletal complaints and assist rehabilitation and self management were the future treatments required.  He thought the plaintiff’s prognosis was poor considering her age and poor recovery post surgery.  He could only see her improving marginally in both the short and long term.

214     Dr Lovell, musculoskeletal physician, examined the plaintiff on referral from Dr Mooney in May 2009.  The referral letter described a history of low back pain and some varying degrees of buttock, leg referred pain.

215     The plaintiff told Dr Lovell about the two slipping episodes and the sudden low back pain when bending into a cupboard two days later.

216     The plaintiff complained of pain across the lower back and lower lumbar region across the upper sacrum, buttocks and lateral hip.

217     Dr Lovell noted the MRI of October 2007 which had demonstrated minimal disc bulges at L4-5 slightly more evident on the left, and a minimal bulge at L5-S1 with some desiccation at that level more than the L4-5 level.  He noted the hips had been x-rayed and were relatively normal. 

218     On examination, there was some back pain on movement and also restriction.  Straight leg raising gave the plaintiff pain at forty five degrees.  Both hips gave some back pain.  Spinal tender points were found maximally at the posterior superior iliac spine area, namely the sacral base and other sacroiliac joint areas with less reactivity over the paravertebral areas at L4 and L5 on both sides.

219     Dr Lovell thought clinically, given the pattern of injury and the examination pattern, the suspicion still fell on the plaintiff's sacroiliac joint and the possibility of facet joint or other aspects of her lumbar spine.  He noted with this background, there was always the possibility of the contribution of hip joint pain particularly from the left side. 

220     Dr Lovell advised the next step was to investigate the posterior column, starting with the sacroiliac joint injection.  This was undertaken on 28 August 2008 and in fact was negative and hence excluded the left sacroiliac joint as the source of pain.  The next step was to investigate the rest of the posterior column, and bilateral L3-4-5 medial branch blocks were undertaken to look at the L4-5 and S1 facet joints.  Again, these were negative, hence excluding both facet joint pain and sacroiliac joint pain as contributing to the plaintiff's pain.

221     When reviewed in November with this knowledge in mind, a history was taken by Dr Lovell and examination was repeated, particularly focussing on the hip joint.  He noted the hip signs required attention given the potential for referred pain and the pattern the plaintiff had experienced.

222     On 28 January 2009, the plaintiff’s hip was injected with a combination of local anaesthetic and cortisone.  Dr Lovell thought that procedure strongly reinforced the conclusion that it was most likely the plaintiff's left hip had a significant role in provoking her pain.  After the procedure the plaintiff felt instantly much more comfortable overall.

223     On that basis, Dr Lovell advised it was certainly justified looking into the plaintiff’s hip further and she was referred to Mr Bare, orthopaedic surgeon, on 28 April 2009.

224     Dr Lovell noted Mr Bare quite rightly felt the plaintiff had a fairly complex pain pattern which justified further investigation of the hip before proceeding with any possibility such as surgery.  Dr Lovell also thought it was quite possible that the plaintiff could have a hip injury with some degree of possible discogenic pain from the low back as well as chronic pain influences. 

225     Dr Lovell concluded it was quite clear the plaintiff's problem was essentially work related in every way, but it remained to be seen whether he could get a specific diagnosis of at least some of the sources of her pain with potential for actual treatment.

226     When last seen, Dr Lovell noted the plaintiff certainly had a significant degree of disability and inability to carry out her normal work.  Whether there were forms of light duties or alternative duties, he thought something could be negotiated within the plaintiff's current state of functioning.  He considered she was unfit for her previous duties.

227     Mr Bare, orthopaedic surgeon, reported on a number of occasions since first seeing the plaintiff on 28 April 2009.

228     On initial examination, the plaintiff told Mr Bare that when she slipped on the wet floor she injured both hips.  She initially had lower back pain and bilateral groin pain, worse on the right than left.

229     Examination findings were consistent with bilateral hip pathology worse on the left than the right.

230     Mr Bare initially organised a left MRI scan because the symptoms were worse on that side.  That scan showed evidence of a tear in the lateral acetabular labrum and a ganz lesion on the anterolateral femoral neck.  Arthroscopic surgery was performed on 22 June 2009 with the labral tear being debrided and the femoral neck impingement lesion removed.

231     On review in September 2009, the plaintiff was having ongoing pain in both hips and requested surgery for her right hip.  Mr Bare noted that was not advised and she was given instructions to continue with physio.

232     The plaintiff was referred back to Mr Bare regarding her right hip on 12 May 2010.

233     Mr Bare noted the plaintiff felt that the pain in the left hip probably started in the same incident as her right but the latter had only recently become a significant concern for her after an injury on 2 April 2010 when walking and experiencing a painful tearing sensation in the lateral aspect of the hip.

234     Mr Bare noted that clinical presentation was consistent with severe right abductor tendinopathy and trochanteric bursitis confirmed on MRI.  The plaintiff was initially treated with a cortisone injection which gave her only short term relief following which her symptoms worsened.  She had also had a number of blood injections.  When reviewed on 9 December the plaintiff had ongoing symptoms related to her right abductor tendinopathy.

235     Mr Bare noted abductor tendinopathy was a degenerate condition of the gluteus medius and minimus tendons.  He requested an MRI scan. 

236     He noted that at that stage the plaintiff's right hip had resulted in reduction of her mobility and an inability to perform any recreational and social activities.  It was also reducing her ability to work.

237     Mr Bare thought the original injury in the incident may have been a precipitant to the current pathology; however, the aetiology of abductor tendinopathy was multifactorial and was usually degenerative in nature rather than acutely traumatic.  He noted response to treatment was not reliable and given the chronicity of the plaintiff's condition, he felt it unlikely she would ever be completely relieved of her symptoms.

238     The plaintiff underwent arthroscopic surgery on the right intra-articular hip condition on 3 March 2011.  On review on 16 March 2011, Mr Bare noted the plaintiff had made an excellent post-operative recovery with good relief of her pre-operative symptoms and he instructed her to continue with physiotherapy.

239     Mr Bare confirmed the aetiology of pathologies was multifactorial.  They had originated from a combination of the plaintiff’s hip morphology (bone impingement lesions), injuries sustained at work and degenerate pathology.

240     Whilst making good post operative progress, Mr Bare thought the plaintiff still had some way to go to regain full function, but noted she was working diligently with the physiotherapist.

241     Mr Bare considered if the plaintiff was not fit for pre injury duties, it was not the injuries alone which contributed to her incapacity.  He thought it was a combination of the injuries sustained in the fall, any pre-existing hip pathology and any degenerate pathology, including possible future degenerate hip joint pathology and abductor tendinopathy.  He considered the plaintiff would require ongoing physiotherapy and a personal exercise and general fitness program in order to maintain her weight at a level not placing excessive strain across her hips or abductor tendons.

242     Jessica Rankin, myotherapist, has been treating the plaintiff since 28 November 2008 as a WorkCover client. 

243     The plaintiff initially presented with pain and spasms of the lumbar spine, as well as pain and weakness in the hips, the left side more than the right.  The plaintiff also complained of a general feeling of weakness from the waist down.

244     Ms Rankin noted the plaintiff's condition had not seemed to improve whilst getting treatment and went through stages where her condition would actually decrease.  She noted the plaintiff’s treatment enabled her to withstand the pain and muscle spasms with the aid of medication.  Whilst the plaintiff's condition was unstable to the current day, Ms Rankin believed it would be difficult for her condition to return to how she originally was due to the injury.

245     Mr Cooney from Wannon Physiotherapy Centre reported that the plaintiff first presented on 21 September 2009.  She told him of slipping on the wet floor and injuring her lower back and both hips.

246     Treatment involved spinal and soft tissue mobilisation of the lumbosacral spine and a progressive home exercise program.  There was also strengthening work for individual hip muscles.

247     Mr Cooney reported on 21 February 2010 that the plaintiff had begun a walking program to improve her strength, exercise tolerance and general fitness.  She could currently walk for thirty plus minutes a day and that had been increasing.  She had also started supervised hydrotherapy.

248     Mr Cooney thought the plaintiff should continue to improve as regards the diminution of her back and hip pain and improvement of her functional abilities.  He thought this would take some months to reach a level where light work may be considered.  He could not see her returning to work in a normal job.

249     Mr Cooney reported in December 2010 that the plaintiff had been managing hydrotherapy as well as the walking program.  Spinal and soft tissue mobilisation on or around her lumbosacral spine had continued as before.  Over that time, the plaintiff had been able to partially stabilise her symptoms, improve her cardiovascular fitness and also manage to maintain and progress a reduction in body weight.

250     He noted however, in the second half of 2010, the plaintiff's right hip received injections, after which there was a period she had to curtail her exercise program.  He thought the plaintiff should continue to improve in terms of her back and hip pain and her functional abilities.  He still could not see her being able to go back to her old job; however, he thought light duties might be possible in the first half of 2011.  He advised he was in the process of arranging a Pilates program for the plaintiff to further improve her core strength and stability.

Medico-Legal Examinations

251     The plaintiff was examined by Mr Brearley, orthopaedic surgeon, on 5 October 2011.

252     The plaintiff told him of doing the splits and feeling pain in her lower back on the first date, and a loud bang in her back on the second date.

253     Mr Brearley noted the plaintiff continued to have pain in her lower back and also in both hips, worse on the left, and she was referred to Dr Lovell and given an injection.  An MRI scan was organised, following which there was arthroscopic surgery on the left hip in June 2009.

254     The plaintiff told Mr Brearley she had a good result from that surgery and within a year was walking well and had lost weight again.  However, towards the end of that period, she was having increasing and intolerable pain in the right hip but Mr Bare recommended conservative treatment only.

255     There was then an exacerbation of right hip pain in April 2010, after which the plaintiff was given a cortisone injection and also a blood injection.  Following a further MRI scan, right hip surgery took place in March 2012.  The plaintiff told Mr Brearley the result had not been as good as her left sided surgery and she continued to have pain.

256     The plaintiff said her hips, in particular the right, were more of a problem than her back.  She had constant pain in the right hip region, in the buttock and groin and radiating down the leg.  She felt the pain was right in the hip itself and worsened by walking or sitting for more than thirty minutes.  She had pain at times when resting; however, when all her weight was taken off her feet, she was able to sleep fairly well.  She reported she walked with a limp.

257     The plaintiff told Mr Brearley she had intermittent problems with her low back.  She had days without any pain at all but then would have severe spasms of pain frequently after long driving or long walking, and on any attempted bending or stooping.  She had pain radiating down her right leg.

258     The plaintiff then weighed 105 kilograms.  She had an antalgic gait favouring the right leg.  Mr Brearley noted the plaintiff gave her history in a straightforward manner with no sense of exaggeration.

259     On examination, there was no deformity or tenderness in the back.  There was limitation of movement.  Straight leg raising was to seventy degrees on both sides.  All deep reflexes were present but weak and sensation was normal.

260     In the right hip, there was flexion through the range of zero to seventy degrees, with other movements showing slight limitation only.  Of the left hip, there was flexion from zero to ninety degrees and other movements were within normal range. 

261     Mr Brearley noted the various investigations from the March 2007 x-ray and CT scan to the right hip to the MRI scan in January 2011.

262     Mr Brearley diagnosed intradisc damage to the L4-5 intervertebral disc with consequent spinal canal stenosis and ongoing mechanical lumbar pain.  He thought the plaintiff had some right leg referred pain but there was no clinical evidence of radiculopathy.

263     Mr Brearley also diagnosed a tear of the anterior labrum of the left hip and a Ganz lesion causing femoroacetabular impingement, operated upon arthroscopically with debridement of the lateral tear and removal of the Ganz lesion with a good result.  He also diagnosed a tear of the anterior labrum of the right hip and femoroacetabular impingement as a result of the small Ganz lesion also operated upon arthroscopically.

264     Mr Brearley thought the injury to the plaintiff’s hips was a direct result of the workplace accident and not a sequelae of the back injury.

265     Mr Brearley concluded, as a consequence of the physical injury to her back and hips, the plaintiff was precluded from her previous employment or any similar employment completely for the foreseeable future.  He thought she would not work again as a personal care worker, nor could she do any other physical work.  He then thought the plaintiff did not have the capacity to perform employment of any kind because of her ongoing back and hip injuries.  He noted she would like to remain in the personal care field by becoming a teacher.  He thought the plaintiff should be able to do that type of work initially part time, assuming her recently operated upon right hip improved gradually.  The plaintiff told him it was this injury which was now preventing her from looking for work as an educator.

266     Because of the physical injury to her hips and back, Mr Brearley thought the plaintiff was unable to carry out domestic duties and required help.  Recreationally, he considered she was no longer able to go camping or power walking, nor swim at the beach.  She could not go to the pictures any more because she could not get up the stairs or sit for long.  She had stopped having dinner parties and she was battling to look after her own requirements.

267     Mr Brearley thought the plaintiff needed ongoing conservative treatment, particularly for her recently operated upon right hip joint.  Mr Brearley considered there would be some improvement of the plaintiff’s right hip condition but she would always have some ongoing discomfort in that area and also in her left hip and lower back, similar to what she had at that time.

268     During addresses, it became apparent there was a further report from Mr Schofield dated 20 February 2012 to Lander & Rogers with which neither the plaintiff nor the Court had been previously provided.

269     Mr Schofield provided this further report, having been forwarded the original claim and medical certificate, the section 98C claim, a certificate of 17 March 2009 and clinical notes from Dr Mooney. 

270     The Certificate of Capacity of March 2009 described back pain worse on the right side compared with left, dysfunctional sacroiliac joints with pelvic instability.

271     Mr Schofield summarised his earlier reports and confirmed that following examination in February 2010, he formed the opinion that the symptoms in the plaintiff’s hips from local pathology were minor and were probably not work-related and it was more likely the hip pain was referred from her back. 

272     In December 2011, Mr Schofield noted the previous examinations confirmed his view that the major cause of the plaintiff’s ongoing disability arose from her back, and the symptoms in the hips were not causing any major disability.  On that examination, there was some slight antalgic gait affecting the right leg and there were minor signs of reduced range of movement in the right hip as tenderness and pain on rotation without muscle wasting.

273     After that examination, Mr Schofield concluded the main area of complaint arose from the injury to the lumbar spine.  He stated he was unsure as to whether the hip problems were work related, but that in view of the very early degenerative change noted and the plaintiff’s chronic excess weight, which had increased as a result of her inability to resume work, he thought it was likely the plaintiff had suffered some soft tissue injury to the weight bearing structures of the hip joints.

274     Mr Schofield then went through methodically a number of entries in Dr Mooney’s notes from 12 April 2007, which included references to the sacroiliac joint, examination of the hips on 13 July 2007, right sacroiliac joint tenderness in August 2007 and a painful left hip on 23 August.

275     There was sharp pain on flexing hips on 19 October 2007; increased pain walking on an incline on 1 February 2008; and then an entry on 10 April 2008 “teary with painful hips”; and thereafter, sacroiliac joint treatment and injections and ultimately the referral to Mr Bare; and a comment on 26 May 2009 that the plaintiff had been diagnosed with labral tear from left hip with undisplaced femoroacetabular impingement.

276     Mr Schofield noted the complaints of hip pain had been present from a relatively early stage following the plaintiff’s injury but he confirmed there was no doubt back pain had been a major cause of ongoing disability.

277     In Mr Schofield’s view, the clinical signs had not specifically indicated an established arthritis of either hip joint; however, he thought it must be stated that degenerative changes in the soft tissues lead eventually to arthritis and most commonly appear in the age group from sixty on.  He noted the plaintiff was previously fit and well and was forty-seven when hurt.

278     As a result of the fall and details provided, including the splits in the legs, Mr Schofield thought this was likely to have caused early damage to the articular surface which had been noted on arthroscopy.  He noted the plaintiff had continued to complain of pains in both hips as well as her back.  Due to her inactivity and depression, she had increased weight, which put stress on her hip joints and therefore increased the chances of arthritis occurring.

279     Mr Schofield referred to Dr Lovell’s letter of November 2008 where he concluded it was reasonable to consider the hip joints as he had at the start.

280     Mr Schofield noted Dr Mooney’s notes frequently referred to hip joints as well as the plaintiff’s back and that was the reason for the referral to Mr Bare to investigate the plaintiff’s hips with arthroscopy with positive findings of early degeneration.

281     Mr Schofield noted the natural history of arthritis may take many years to develop either spontaneously or after an injury.  On the additional material, including complaints of hip pain from an early stage after injury, the stresses placed on the hip joints at the time of injury being a significant factor, it was his altered view that in the long term there was a work related injury having been caused by the fall and, in particular, the mechanism by which the plaintiff did fall as described by Dr Lovell, which was likely to have resulted in acetabular or femoral articular damage. 

282     Mr Schofield thought the plaintiff currently did not have any evidence of arthritic disability except she had always had an antalgic gait which was not explained by her back condition. 

283     As a result of the additional information, Mr Schofield now formed the view that the plaintiff's current hip pathology was related to the March 2007 injury.

Investigations

284     There was an MRI scan of the lumbar spine organised by Dr Mooney in October 2007.  It was reported there was mild degenerative disc disease and mild bilateral facet joint degeneration within the lower lumbar spine.  There were no disc protrusions at any level and no evidence of neural compromise.

422     The plaintiff reported the injury had a major impact on her life, affecting hobbies such as craft, and activities such as cooking meals and washing dishes.  She was no longer able to go for walks regularly and consequently had put on some weight.

423     The plaintiff advised she continued to experience pain symptoms in her back and pelvis which caused her difficulties standing or sitting for extended periods.  She was then uncertain about what type of alternative work she would be suitable for.

424     Ms Vareca identified the following suitable employment options in order of priority: sales representative; sales demonstrator; survey research interviewer; office assistant; and enquiries and admissions clerk.

425     The plaintiff advised she was not familiar with using computer programs.  She had completed Year 10 and had a Certificate III in Community Care.

426     Prior to the injury, the plaintiff’s activities included going to the beach, gardening and cooking, activities she could no longer do because of her back injury.

427     The plaintiff said she was good at talking to people.  She felt devastated at the idea of not being able to continue as a personal care worker.  She said she was prepared to do anything but was uncertain what type of roles would be physically suitable for her.  She thought about the possibility of completing a long term training course at TAFE with a view to disability or case management.  The plaintiff believed she would have difficulty undertaking a role where she was required to stand for prolonged periods of time due to her injuries.

428     Ms Vareca concluded the plaintiff had been unable to return to work as a personal carer.  If that continued to be the case, the plaintiff would have a limited transferrable skills base for suitable employment and Work Able recommended that the plaintiff would require a period of vocational training.

429     There was a further Work Able assessment carried out by the same assessor, described as an NES vocational assessment report in February 2010. 

430     The same jobs were identified as suitable. 

431     It was noted that the certificate of Dr Mooney of 5 November 2009 set out:

“Back pain worse right side compared to the left.  Dysfunction sacroiliac joints with pelvic instability.  Repair of the left labral tear.”

432     Mr Bare’s report of 10 September 2009 set out the left hip examination findings.  There was also reference to Mr Schofield’s assessment of 12 February 2010.

433     It was also noted Dr Mooney and Mr Schofield both thought the plaintiff was unfit for any work at that time. 

434     The plaintiff then confirmed she was no longer able to do the activities she had previously enjoyed and that she had been mainly housebound in recent years.  She was hopeful her condition would continue to improve over time and allow her to consider a part time return to work.  She was not then thinking about what type of work options there were for her in the future and reported she did not have any idea about whether or not she would be physically capable of doing any type of work, let alone knowing what type of work.

435     The plaintiff advised she had not given any thought to vocational training options, reiterating that her primary focus was on her treatment and rehabilitation.  She did not think she would be physically capable of participating in any training courses or coping with the computer as she could not sit for very long.

436     In conclusion, Work Able Consulting did not recommend the plaintiff be referred for vocational re-education and assessment as, based on the available medical information, she did not have a capacity for work.

Overview

437     It is accepted that the plaintiff suffered a compensable injury to her lower back in the incidents in March 2007; however, there is some dispute as to the diagnosis of the plaintiff’s compensable injury and whether its effects are ongoing.

438     Counsel for the defendants conceded that initially there was at least a soft tissue injury/strain at L4-5, albeit from relatively trivial incidents.  Further, reliance was placed on Dr Grave’s view that there was a bulging disc shown on the original CT scan in early 2007 which contributed to the plaintiff’s pain, and then improved over the following months as confirmed on the October 2007 MRI.

439     Whilst when Dr Grave last saw the plaintiff in early March 2008 he described her condition as relatively better, he found tenderness in the lumbar spine and gave her an injection of anaesthetic and Depo-Medrol into the interspinous ligament at its attachment to the L5 spinous process.

440     Clearly, at the time of Dr Grave’s last examination, it could not be said that the plaintiff’s lumbar condition had resolved.  I accept since that time the plaintiff has continued to experience back pain of varying degree.

441     I am not satisfied, as counsel for the defendants submitted, that it is simply a case of there being a soft tissue injury that resolved, as Dr Graves stated.  He is not an orthopaedic surgeon and was not involved in the treatment of the plaintiff’s back condition and has not seen her since March 2008.

442     I am satisfied that the plaintiff suffered an aggravation of pre-existing degenerative change at L4-5 in the incidents and that such aggravation continues, as found by Dr Mooney, who confirmed the plaintiff has had ongoing back pain since that time that warrants treatment.

443     Further, Mr O’Brien and Mr Kierce, who both examined the plaintiff some time ago, thought her back problems related to the L4-5 disc.  More recently, Mr Brearley and Mr Schofield expressed a similar view. 

444     Only following the December 2011 MRI scan has there been any suggestion from an orthopaedic surgeon involved in this case that there is a prolapse at L4-5. 

445     The only practitioner who found a prolapse at L4-5 was Mr Schofield, following that most recent MRI scan.

446     No other medical practitioner has commented on the December 2011 MRI scan and Mr Schofield’s interpretation of what was shown differs from his view of the earlier investigations, in particular, the October 2007 MRI scan, which he thought showed degeneration at L4-5 but no evidence of canal stenosis or prolapse.

447     In her viva voce evidence, Dr Mooney explained that she thought there was a prolapse based on the history of the second incident and the March 2007 CT scan.  Dr Mooney agreed that the MRI scan later that year showed no prolapse or nerve root compromise and she conceded that the mild desiccation shown at L4-5 was what you would expect to see in a morbidly obese forty eight year old woman with a prior history of low back pain that put her out of work for three years. 

448     Further, I do not accept that the constitutional factors and the plaintiff’s current morbid obesity explain her current restrictions, as the plaintiff had a weight problem for years before the incidents and was able to work and engage in daily activities without difficulty.  Similarly, her other medical condition of migraines with associated neck tension did not limit her activities. 

449     There is no medical support for the plaintiff’s pain being non organically-based.  The only examiner who suggested treatment for pain management was Dr Grave, who diagnosed chronic lumbo pelvic pain not a chronic pain syndrome.

Claim Accepted

450     I am mindful of the fact the second defendant accepted liability for the payment of weekly payments and medical expenses.  Liability was also accepted in relation to the plaintiff’s low back claim pursuant to section 98C. 

451     This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admission should ordinarily be regarded as very significant:

“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”

Pre-existing Condition

452     In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the incidents is serious and permanent.

453     In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –

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

454     The Court of Appeal recently followed this approach in AG Staff v Filipowicz; Arnold Ribbon Company v Filipowicz (supra).

455     Whilst the plaintiff had had a significant back problem in 1981 which put her off work for about three years, I accept that her condition did not trouble her during the 1990s and save for two isolated attendances on Dr Mooney in 2002 and 2003, the plaintiff did not complain of back pain.

456     As at the time of the incidents, the plaintiff was working in a relatively physical job with no difficulty, taking no medication and having no treatment whatsoever for her back.

457     Whilst there may have been an ongoing problem during 2002-2003, as Dr Mooney conceded, I am not satisfied that the plaintiff had any impairment of her back of any significance at the time of the incidents.

458     Clearly, however, the plaintiff had pre-existing degenerative changes shown on earlier investigations but I accept that such changes were essentially asymptomatic at the time of the incidents.

459     When I raised my views in this regard with counsel for the defendants in addresses, he accepted that was the plaintiff’s situation at the time of the incidents but submitted that the plaintiff had an underlying condition and the incidents were just another aggravation.

460     Whilst counsel for the defendants submitted that the plaintiff’s present condition related to the underlying degenerative condition of her back, there is no medical evidence supporting this contention, explaining when the incident related aggravation ceased.

Pelvis and Sacroiliac Joint

461     This plaintiff’s application became somewhat complicated during the hearing with counsel for the defendants raising a number of non related medical conditions from which the plaintiff had suffered since the incidents.

462     Some time was spent in cross-examination of both the plaintiff and her general practitioner, Dr Mooney, as to these unrelated matters; however in submissions, much of the material relating thereto was not relied upon by the defendants.

463     It was ultimately conceded that the plaintiff’s pelvic dysfunction had been successfully treated by Dr Grave and had resolved.  Further, the sacroiliac joint had been investigated by Dr Lovell by way of medial branch blocks and discounted as a cause of the plaintiff’s pain.

The Hips

464     The plaintiff’s hip condition which post dates the incidents however, complicates the plaintiff’s application to some degree.

465     Forrest J, in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), held that a supervening event, in this case the hip condition, was a matter for damages if the Court was satisfied that there was a serious injury in relation to the claimed compensable condition.

466     I must therefore determine whether the back condition is itself serious and if I am satisfied this is the case, the issue of the hip condition is then a matter for trial.

467     Until Mr Schofield reported in February 2012 in response to a request from the defendants’ solicitors to comment on the relationship of the plaintiff’s hip complaints to the incidents, Mr Brearley, in October 2011, was the only examiner who considered the plaintiff’s hip condition was causally related thereto.

468     Whilst Mr Schofield had examined the plaintiff on four occasions and provided a number of supplementary reports, it was not until he provided what was in fact his third report on his fourth examination in December 2011 that he linked the hip condition to the incidents.

469     The preponderance of medical opinion however is that the hip condition is not related to the incidents.

470     Thus, counsel for the plaintiff did not argue that the plaintiff’s hip condition related to the incidents, stressing “no way the hips are part of the application”.  He submitted the impairment was solely to the plaintiff’s spine.

471     When I pointed out there was little disentangling in the plaintiff’s later affidavits as to the consequences of her back and hip conditions, counsel for the plaintiff submitted the plaintiff was not a doctor and she could not tell where her complaints were coming from.  In that regard, he relied on Mr Schofield’s comment that it is not uncommon there would be a referral from the pain at L4-5 to the hips and that the more likely cause of the plaintiff’s pain in her hips and legs was the aggravation of degenerative changes affecting the two lower levels of the lumbar spine.

472     As the application related solely to the back, the consequences of that condition must be identified.  This was a somewhat difficult task given the content of the plaintiff’s affidavit evidence and also the different complaints made by her to various doctors as to the nature of her physical complaints.

473     The plaintiff’s December 2008 affidavit contained several references to her hips as causing pain and resulting in a number of restrictions to which her back pain also contributed.  This affidavit obviously predates the surgery on both hips – the left in 2009 and the right in 2010.

474     In her January 2010 affidavit, the plaintiff simply mentioned continuing problems in both hips and the surgery to the left, following which her hip was still very painful although movement was better.  Her right hip then was also problematic.

475     The plaintiff deposed in February 2011 that Mr Bare had decided to operate on her right hip.  Otherwise the plaintiff described in detail her problems with a wide range of daily activities, including sleep and work, but did not say whether these problems were due to back pain or hip pain. 

476     In her most recent affidavit sworn in February this year, the plaintiff confirmed she had undergone right hip surgery which had helped, but she was still very restricted.  She described problems with prolonged standing and sitting, adding that her hip pain spread to both feet and was present most of the time.  Further, she got back pain two or three times a week particularly if she did too much or was not careful.

477     The plaintiff’s viva voce evidence was not particularly expansive on this issue.

478     The plaintiff described pain from the waist down since the time of the incidents.  There were three areas of pain – her back and her two hips.  The plaintiff presently has physiotherapy treatment to ease her back pain and massage involves the spine and the glutes.

479     The plaintiff had relief from the left hip surgery and agreed with Dr Mooney’s view that following the right hip surgery there was a significant improvement in range of pain-free movement and flexibility of the plaintiff’s hips.

480     The plaintiff confirmed she had problems with sitting and standing that caused her to leave the church.  Further, when the plaintiff recently dropped her purse and experienced an increase in pain, as Dr Mooney reported, the main problem was with her back, but she also aggravated her hips.

481     Overall, I accept that the plaintiff’s main ongoing problem relates to her back.  Having somewhat resiled from her recent affidavit evidence as to the level of ongoing hip problems, the plaintiff described an improvement in relation thereto particularly after the right hip surgery. 

482     Dr Mooney confirmed there was a successful result following the left hip surgery and marked improvement after the other interventions.  Further, there was significant improvement after the right hip surgery with increase in the range of pain-free movement and flexibility. 

483     Dr Mooney confirmed an ongoing problem with the lumbar spine and ongoing treatment and complaint in relation thereto, citing examples of how vulnerable the plaintiff’s back was with the pain experienced on MRI scanning and the  exacerbation when simply bending to pick up her purse.

484     Mr Bare last saw the plaintiff on 16 March 2011, only two weeks after the right hip surgery.  His report is of little assistance in assessing the state of the plaintiff’s present hip condition.

485     The plaintiff told Mr Brearley in October 2011 that her hips were then more of a problem than her back and that she had intermittent back pain and sometimes severe spasm with radiation down her right leg.  He did not differentiate between the hip and back as the cause of her pain, restriction and incapacity.  On examination, he found only slight limitation of hip movement both sides on flexion.

486     Whilst in his report of February 2012 Mr Schofield changed his view and concluded for the first time that the hip condition was related to the incidents, he noted his previous examinations confirmed his view that the major cause of the plaintiff’s ongoing disability arose from her back and the symptoms in the hips were not causing any major disability.

487     On that basis, he was surprised when the Support Service Report of March 2011 focussed on the plaintiff’s hip condition when the plaintiff, on examination in December 2011, continued to complain of constant back pain, although mentioning a lesser problem with her hips. 

488     Mr Schofield considered there only were mild degenerative changes in the hips that had not caused any reduction in the plaintiff’s range of movement and the absence of wasting of the leg muscles above the knee indicated there was no significant pathology affecting her hip joint.

489     Taking into account all the evidence, I am satisfied that the plaintiff’s main ongoing problem is her back condition.  She maintains that her ongoing problems are related thereto, having acknowledged improvement in her hips following surgery.

490     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:

“… 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.”

491     I found the plaintiff to be a generally truthful, credible witness who at times perhaps overstated her level of pain and disability.

492     Dr Mooney considered the plaintiff to be genuine in her complaints and accepted she was in significant pain at the times she saw her.  Dr Mooney was prepared to concede she did not share the same view of some of her other patients. 

493     I did not consider Dr Mooney to be an advocate for the plaintiff, rather a conscientious general practitioner who provides appropriate treatment and support for her patient.

494     I do not accept the plaintiff was motivated by secondary gain, as counsel for the defendants submitted.  Nor do I accept that the extensive treatment undertaken by the plaintiff has contributed to a lack of motivation on her part.  Confirmatory of my view was the plaintiff’s evidence of having to leave the church – a very important part of her life – because of the stigma of being injured and being unable to participate in healings.

495     Dr Mooney clearly disagreed that the plaintiff had any secondary gain.  She considered the plaintiff had lost a lot in terms of self esteem, and she was socially isolated.  Further, she pointed out that the plaintiff had difficulty moving around because of pain.

496     Whilst there was film taken on six or more different occasions following many hours of surveillance, that film showed nothing more than the plaintiff walking short distances around the Warrnambool shops, standing for a short time or sitting for about ten minutes at a coffee shop.

497     Whilst there was no restriction or pain displayed save for the plaintiff holding her back on the 25 February 2008 whilst standing in the aisle of a shop, the plaintiff was not shown undertaking any strenuous vigorous activity whatsoever, nor was she shown bending, lifting or undertaking any of the activities she has described as giving her pain.  I accept the submission by her counsel that there was nothing shown on film inconsistent with the life of a person with a back injury.

498     I accept the plaintiff has suffered back pain of varying degrees since the incidents.  Particularly in 2009 and 2010, the plaintiff also had problems with her hips, significant enough to require surgery.  I do accept however that such surgery has largely improved her hip problems – a situation confirmed by Dr Mooney and Mr Schofield.

499     The plaintiff has undergone a range of treatment modalities for her back condition and still requires treatment, such as physiotherapy, hydrotherapy and massage on a regular basis and she also attends Pilates.

500     The plaintiff continues to take Codeine prescribed by Dr Mooney and also Aspro Clear.  She is allergic to stronger painkilling medication. 

501     The plaintiff is restricted in housework and requires assistance of home help for heavier tasks.  In 2010, the plaintiff moved into a unit without a garden as she was no longer able to do gardening, an activity she previously enjoyed.

502     The plaintiff continues to have difficulty with prolonged sitting and standing as evidenced by her difficulties leading to her leaving the church.  She is unable to stand for extended periods to prepare and cook for dinner guests, an activity she previously regularly enjoyed.  Even minor movements such as bending to pick up her purse may cause the plaintiff significant back pain as Dr Mooney confirmed.

503     Due to her back condition, the plaintiff is limited in her ability to care for her disabled daughter and she is unable to assist her to the degree she did before the incidents with activities such as housework.

504     Prior to the incidents, the plaintiff had a solid, although varied work history, at times including quite physical work as a cleaner.  She then undertook training to enable her to work in the attendant care field.  It had always been her intention to then do nursing and she had applied for a Division II nursing course whilst working for the first defendant before the incidents.

505     As a result of her back injury in the incidents, the plaintiff no longer has the capacity to work hands-on in her chosen field.  The consensus of medical opinion is to this effect.

506     The plaintiff’s numerous attempts at returning to work and the difficulties she experienced in relation thereto confirm the plaintiff had problems even with relatively light duties 

507     In my view, the impact on the plaintiff’s employment and her inability to work in her chosen field, work she particularly enjoyed, is the main consequence of her back condition.

508     As the plaintiff’s back pain and restrictions have persisted without significant improvement for over five years, I am satisfied that her impairment is permanent. 

Loss of Earning Capacity

509     Having satisfied the narrative requirements, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a)    at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).

510     The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)     “without injury” earnings;  and

(ii)     “after injury” earnings. 

511     The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).

512     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

513     It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

514     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein – see Barwon Spinners Pty Ltd & Ors v Podolak (supra, at paragraph 70.

515     In terms of the “without injury” earnings figure, counsel for the defendants relied on the plaintiff’s taxable earnings for the 2005-2006 financial year of $26,309.  The plaintiff was then working twenty one hours per week, which would equate to $400 a week, sixty per cent of which is $240.  With extra shifts, the plaintiff grossed $505 a week, forty per cent of which is $308.

516     Counsel for the plaintiff did not address me on the appropriate figure for without injury earnings.

517     Whilst the plaintiff does not have a capacity for her chosen career as a personal care worker/nurse with the physical work involved, I am of the view that she does have a capacity for suitable employment such that she will not suffer the requisite loss on a permanent basis.

518     In cross examination, the plaintiff denied she was a closed book in terms of future employment.  She had deposed to an interest in retraining for care work.  She has not shut her mind to returning to the workforce, particularly in her chosen field, but as a teacher not a hands-on worker.

519     In my view, particularly with retraining in the attendant care field, the plaintiff would be able to perform sedentary work on a part time basis.  Further, the plaintiff has some computer skills and she would have the capacity to engage in part time office work or customer service where she has the ability to change her posture. 

520     All medical practitioners who have seen the plaintiff recently share this view to some degree. 

521     Mr Brearley thought in October 2011 that in the next nine to twelve months the plaintiff might be able to resume work, but not as a personal carer, noting she would like to remain in the personal care field by becoming a teacher.  He thought she should be able to do that type of work, initially part time, assuming her recently operated upon right hip improved gradually – the problem she then said was most affecting her ability to teach.

522     Whilst Mr Schofield at one point in his recent report stated that the plaintiff had no current work capacity, he then went on to say that he considered the only work the plaintiff could do was sedentary, on a part time basis.  In his view, such suitable employment in general terms would need to exclude prolonged sitting or standing, repetitive lifting and bending and include adequate daily rest periods for exercise and rest.  He thought such work was likely to be light duties on a part time basis.

523     Whilst she has continued to provide no current capacity certificates, in a report earlier this year, Dr Mooney was not dismissive of the possibility of the plaintiff returning to work after some retraining in a flexible environment on a part time basis with duties not involving prolonged sitting or standing.  Dr Mooney thought teaching may pose some problems for the plaintiff with the standing involved.  She noted the plaintiff already had some computer literacy.

524     In her viva voce evidence, Dr Mooney was less optimistic as to the plaintiff’s work prospects, explaining that the plaintiff’s condition fluctuates and she would not be a reliable worker.  However, Dr Mooney confirmed her earlier view that maybe the plaintiff could look at retraining for some other work with some flexibility.  In re-examination, Dr Mooney said she thought there was a small chance the plaintiff would return to work in the future given the plaintiff’s experience since the incident.

525     Vocational assessments carried out by both parties identify a range of employment deemed suitable for the plaintiff. 

526     In 2008 and 2010, Mr Radley thought, on the basis of her back condition, the plaintiff had no current capacity to return to her pre-injury employment or to any similar employment, or to return to any type of alternative employment.  In his 2010 report, Mr Radley came to a similar conclusion, also mentioning a bilateral hip problem. 

527     Following both assessments, Mr Radley considered the plaintiff had some potential for occupational retraining.  He thought she may have some capacity for part time or full time employment in occupations such as service station attendant, driving instructor, tourist information officer, hotel/motel front office clerk, disability services instructor or desk top publisher in the future, but would first need to complete an appropriate occupational retraining course. 

528     Mr Radley also thought the plaintiff may benefit from a referral to an occupational rehabilitation provider, approval to participate in a multidisciplinary pain management program and a referral to a psychologist skilled in treatment for injury adjustment, pain management and vocational redirection.

529     However, Mr Radley noted a number of factors were likely to make it more difficult for the plaintiff to obtain and maintain employment in the future.

530     WorkAble suggested the jobs of sales representative/demonstrator, survey interviewer, office assistant and enquiry and admissions clerk as suitable for the plaintiff in April 2008 and also in February 2010.  However, these options were based on the plaintiff having a future capacity to work and it was noted that the medical information at that stage indicated the plaintiff was unit for work. 

531     Taking into account all the evidence, I am not satisfied that the plaintiff has a loss of earning capacity of forty per cent on a permanent basis.  I am not satisfied that the plaintiff does not have the capacity to earn more than $308 per week.  Working only a twenty hour week as a customer service representative or general clerk on the figures set out in the WorkAble report, the plaintiff would still earn in the range of $400 per week

532     I cannot be satisfied that, after appropriate rehabilitation or retraining, the plaintiff would suffer a forty per cent loss of earning capacity on a permanent basis. 

533     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and dismiss her application in relation to loss of earning capacity.

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