Elia v Victorian WorkCover Authority
[2023] VCC 1870
•12 October 2023 (Unrevised) 18 October 2023 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-01069
| RITA ELIA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4, 5 and 10 October 2023 | |
DATE OF JUDGMENT: | 12 October 2023 (Unrevised) 18 October 2023 (Revised) | |
CASE MAY BE CITED AS: | Elia v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1870 | |
REVISED REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine – pain and suffering consequences – range – substantial organic basis – credit and reliability – evaluation of medical evidence – borderline case
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Giankos v SPC ArdmonaOperations Ltd (2011) 34 VR 120, Victorian WorkCover Authority v Kalenjuk [2017] VSCA 17, Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Leave granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect of the lower spine.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Slater and Gordon Lawyers |
| For the Defendant | Ms L Glass | Hall & Wilcox |
HER HONOUR:
Introduction
1This is an application by Ms Rita Elia (“the plaintiff”) for leave to bring common law proceedings for pain and suffering pursuant to s325(1)(a) and s325(1)(c) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) in respect of the consequences of a sacral fracture injury to the lower spine.[1]
[1] Transcript (“T”) 3-4
2The sacral fracture injury was sustained by the plaintiff in a discrete incident on 20 February 2021 (“the fall”). The plaintiff initially opened the case to include both sub-paragraphs (a) and (c) of the definition, but in closing address, made no submissions in respect of the claim under sub-paragraph (c).
3The plaintiff is now twenty years old. The plaintiff lives with her parents and two younger siblings.
4At the time of the fall, the plaintiff was seventeen years old and enrolled in Year 11 at St Mary’s Coptic Orthodox College. She was working part time at a Foodworks supermarket (“the employer”). The plaintiff was working in the “deli section” of the supermarket when she slipped on a recently mopped floor and fell onto her buttocks.
5Two days after the fall, the plaintiff was sent by her general practitioner (“GP”) for an x-ray. The x-ray demonstrated that the plaintiff had suffered a sacral fracture. Imaging of the injured area over time demonstrated displacement at the site of the fracture and delayed union of the bone.[2]
[2] Amended Plaintiff’s Court Book (“APCB”) 35
6The plaintiff completed Years 11 and 12 and went on to university, initially enrolling in a Health Sciences Diploma. In 2022, as a result of her academic achievements in that diploma, the plaintiff qualified for entry into, and is now completing, the first year of a five-year Associate Degree in Health Sciences (Osteopathy) at RMIT University. The plaintiff hopes to complete her degree and become a qualified osteopath.
7The plaintiff has had conservative treatment, including physiotherapy and medication. She continues with this regime. The plaintiff alleges the pain and other consequences of the injury continue to have a significant ongoing impact on her quality of life, and her ability to study and to participate in sport and social activities with her friends.
Issues before the Court
8In respect of the claim under sub-paragraph (a), there were essentially two issues before the Court; “range” and whether there was evidence of a substantial organic basis for the plaintiff’s complaints of pain and disability.
9On the hearing of the application, there was no issue that the plaintiff had initially suffered a work-related sacral fracture in the fall. The defendant, however, contended that the plaintiff had recovered from that fracture.
10The defendant relied mainly on the opinion of Dr Majid Rahgozar, occupational physician, in support of its contention that the plaintiff’s sacrum fracture had now healed and there was no longer any organic basis for her pain and limitations.
11On behalf of the plaintiff, counsel submitted that there was overwhelming evidence of a substantial organic basis[3] for her pain and suffering consequences and that they were “more than significant or marked” and “at least very considerable”.
[3]T136
Summary of findings
12I find there is a substantial organic basis for the impairment consequences of the compensable injury.
13Having reflected carefully on the application, I consider that this is a borderline case. However, I grant leave under sub-paragraph (a) of the definition, as the plaintiff is a very young woman who is experiencing daily pain and frequent sleep disturbance, both of which are affecting her daily life to a significant degree. With the exception of Dr Rahgozar, the weight of the evidence supports a conclusion that the effects of the injury will continue into the foreseeable future.
14I have not considered the plaintiff’s claim under sub-paragraph (c) of the definition, as she has been successful under sub-paragraph (a).
The Plaintiff’s credit and reliability
15Often in serious injury cases, the credit of the plaintiff is central to the Court’s assessment of the alleged pain and suffering consequences. It is important because the Court must be satisfied of the alleged consequences. Further, credit and reliability findings have a bearing on the Court’s assessment of the medical opinions which are, in part, dependent on the history provided by the plaintiff.[4]
[4]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
16The plaintiff impressed me as a sensitive and emotionally-vulnerable young woman. Overall, and without criticism, I do not find her to be very sophisticated. I did not form the impression the plaintiff was manipulating her evidence to suit her case. On the contrary, I consider she gave frank answers without exaggeration and a made number of concessions against interest. For example, when asked about the levels of pain since the time of the fall, the plaintiff initially agreed that they had been at the same level. Asked in a different way, the plaintiff agreed that her pain was less now than at the time of the incident.[5]
[5] T23
17In closing submissions, counsel for the defendant said that the plaintiff may be considered to be an unreliable witness. Examples given included the assertion that her evidence varied about her medication and experience of pain.[6] In particular, it was suggested that the plaintiff had given inconsistent reasons for using Valpam medication and inconsistent accounts in her affidavits about what it was for (anxiety and muscle spasm[7]) and what effect it had on her[8] (not much difference and no particular benefit, as opposed to good effect on back pain[9]).
[6]T23, T29 and T103
[7] T27 ꟷ T29
[8]T30 and APCB 125
[9] T30 ꟷ T31
18I considered this submission in the overall context of the plaintiff’s circumstances, her young age, her participation in university studies and the explanations given by her that she might have been stressed or confused[10] at the time she provided the account/s.
[10]T34
19Overall, I find there is a plausible explanation for any inconsistencies due to the passage of time and the plaintiff’s idiosyncrasies and personal circumstances.
20I prefer the contemporaneous records by her treating doctors in relation to issues of medication where the plaintiff’s evidence might be unreliable on the subject.
21In response to the plaintiff’s closing submissions, the defendant elevated their credit submissions[11] to suggest that the plaintiff had failed to be frank at points of her evidence that she thought might negatively impact her claim, and that she had given a disingenuous explanation for failing to act on a referral to pain management which she had requested from her doctor.
[11] T49 ꟷ T51
22The request for the Pain Management Program was made in October 2022,[12] during the academic year. The plaintiff said she was busy with exams and had completely forgotten about the referral. I accept that explanation. It makes sense that a student at the end of the academic year might be pre-occupied with exams.
[12] T50 ꟷ 51
23After exams, the plaintiff was on holiday for four months. Counsel for the defendant put to the plaintiff that the real reason she had not followed up on the Pain Management Program was because her pain had never been bad enough, or troublesome enough, to require such follow up.[13] The plaintiff did not accept this proposition and maintained she did not have time and was receiving follow up from her treating psychologist instead.
[13] T52
24Counsel for the plaintiff appropriately conceded that there was no proper explanation offered by the plaintiff for failing to follow up on the Pain Management Program when she was on holiday.[14]
[14] T133
25I do not regard the failure as significant, as counsel for the defendant submitted. The plaintiff is a young woman studying to qualify as an osteopath in difficult domestic and personal circumstances. She is living with her parents, who are separated under one roof. This arrangement was clearly a source of distress for her and so much was evident when asked about it by the Court.[15]
[15] T54
26When asked by the Court what she did after the exams on the four-month holiday, the plaintiff answered “[n]ot much”.[16] I find this to be a significant concession against interest and bespeaks of a witness who is not, in fact, manipulating the Court or giving evidence to suit her purpose.
[16] T53
27The plaintiff called for an admission and the defendant admitted that it had in its possession ten minutes and thirty-nine seconds of surveillance film after having undertaken 44.75 hours of surveillance of the plaintiff.[17] No surveillance video was played.
[17] T75 ꟷ T76
28Aside from the partially-unexplained failure to follow up on the Pain Management Program, no challenge was successfully made as to the pain and limitation consequences alleged by the plaintiff.
29Taking into account the whole of the evidence, including the cross-examination, I find that no substantial damage was done to the plaintiff’s credit and reliability.
The Plaintiff’s evidence as to consequences
30Based on the plaintiff’s oral evidence and the contents of her three affidavits, the plaintiff has had, and continues to experience, a number of consequences from the fall. As stated above, there was no substantial challenge to these, save for the submission that they do not satisfy the “very considerable” test.
31Counsel for the plaintiff submitted that, if the Court accepted the plaintiff as a credible and reliable historian, the Court ought to have no difficulty accepting that the consequences of the injury are very significant for her.[18] I accept this submission.
[18]T114 ꟷ T115
32The consequences are as set out below. I have included reference to any challenge, where such challenge was made.
Pain
33The plaintiff deposed, and confirmed in her viva voce evidence, that she experiences constant daily pain in her lower back and tailbone with varying intensity, impacting on her ability to attend classes and study in Year 12, and at university.
34It was put to the plaintiff that any reduction in pain medication meant that her pain was better or that her physical health had improved. The plaintiff did not accept that and said, while there might have been healing, her pain levels did not improve. The plaintiff also, however, conceded that her level of pain at present is not as severe as it was at the time of the fall.[19]
[19] T18 ꟷ T19 and T23
35The plaintiff deposed that her pain affects her ability to commute to university and, then, at university, impacts on her ability to study in class and participate in practical classes. In 2022, the total number of hours the plaintiff spent studying each week was twenty-five to thirty a week.[20]
[20] T43 ꟷ T44
Functional tolerances
36The plaintiff deposed to difficulty in sitting for prolonged periods due to back pain and the need to stand intermittently to alleviate the pain.[21]
[21] APCB 9 at paragraph [26]
37In her viva voce evidence, the plaintiff said her sitting tolerance is ninety minutes (sometimes less, sometimes more), after which time she might need to stand up to alleviate her pain.[22] Her physical presentation in the witness box was consistent with this evidence.
[22] T20 and T48
Sleep
38The plaintiff deposed to interrupted sleep due to back pain, at times inability to initiate sleep and, at times, tiredness due to lack of sleep, being “up for hours” during the night, even after taking medication for her pain.[23] Initially, the plaintiff was placed on amitriptyline (“Endep”), 10 milligrams daily. In August this year, she was prescribed Norgesic. Between the time of the injury and the present day, the plaintiff has been prescribed Ibuprofen, 400 milligrams, Valpam, 2 milligrams, and has taken Panadol Medication.
[23] APCB 9-10
39In her viva voce evidence, the plaintiff said the frequency of interrupted sleep episodes might vary from two times per night during the week and it may occur on weekends too.[24]
[24] T58
Sporting and recreational activities
40The plaintiff deposed to inability to run and play soccer as she used to prior to her injury due to back pain.[25]
[25] APCB 10
41The plaintiff also deposed to inability to attend activities which she used to do before her injury and which her friends currently engage, or to which she might be invited. Examples of these were ice skating, rock climbing, road trips, jet skiing and going to night clubs.[26] It was not suggested to the plaintiff that she could, or did in fact, undertake such activities.[27]
[26] APCB 10 and T56
[27] T56
42Other consequences which the plaintiff deposed to included weight gain of approximately 10 to 12 kilograms; an inability to wear high heels, which she used to do prior to her injury; and restriction on her ability to cook and chop ingredients, having to do those tasks sitting down.[28]
[28] APCB 10-11
43The plaintiff also relied on a supporting affidavit from her friend Ms Helen Haddad. Ms Haddad’s affidavit provides support for the plaintiff’s consequences of limited sitting tolerances at university, needing to leave class to rest, complaints of back pain, and restriction of attendance at social activities.[29]
[29] APCB 16-17
44Ms Haddad was not required for cross-examination and neither party addressed the Court on her affidavit.
Medical evidence
45With the exception of Dr Rahgozar, all medico-legal and treating experts agreed that the plaintiff had a sacral fracture which is continuing to produce pain and disability. Dr Graeme Doig, orthopaedic surgeon; Professor Richard Bittar, consultant neurosurgeon and Mr Paul McCann, physiotherapist, all considered that the plaintiff had an additional lumbar spine/sacroiliac joint injury arising from the fall.[30] Treating general practitioner (“GP”) Dr Maria Bhurgri’s opinion is largely consistent with the weight of the evidence in the case.
[30]APCB 107; Dr Doig – soft-tissue injury to lumbar spine, APCB 100; Professor Bittar – may also have sustained sacroiliac joint injury; Mr McCann ꟷ “lumbar spine and pelvic injuries” APCB 34
46In summary, the relevant specialists provided the following opinions:
(a) Treating orthopaedic surgeon, Mr Arshad Barmare, provided one report dated 10 August 2021. The report confirmed that the plaintiff’s fracture was uniting very slowly. Mr Barmare offered a steroid injection with manipulation of the sacral 5 vertebra,[31] but the plaintiff did not undergo this procedure for fear of risks.[32] Otherwise, the report is outdated and provides little assistance to the Court, whose task is to assess the plaintiff as at the time of the application.
[31] APCB 35
[32] APCB 8
(b) Mr McCann, physiotherapist, has been providing regular physiotherapy and exercises since 25 May 2021. His treatment was ongoing as at August 2023. Mr McCann diagnosed a “fractured sacrum and lumbo-sacral spine injury”[33] and envisaged further physiotherapy treatment into the future;
[33] APCB 75
(c) In her August 2023 report, Dr Bhurgri, diagnosed “[p]osteriorly displaced sacral fracture with delayed healing [and] persistent back pain”,[34] and reported to the Court that the injury is producing pain from extended sitting or standing with “no improvement noted in the last 6 months”.[35] On 3 August 2023, Dr Bhurgri prescribed Norgesic, 35 milligrams/450 milligrams, two tablets to be taken every eight hours. The diagnosis at the time of the prescription is back pain and the history was “stiff back most mornings”;[36]
(d) In his August 2023 report, Professor Bittar, consultant neurosurgeon, diagnosed “ongoing lower back pain secondary to her sacral fracture” and “may also have sustained an injury to other structures including sacroiliac joints… (further imaging is required)”.[37] Professor Bittar accepted that, although there may have been healing demonstrated on the imaging, and her pain might have improved, any improvement had plateaued.[38] On examination, Professor Bittar found evidence of bilateral paravertebral muscle spasm and tenderness, particularly on the right.[39] These are objective findings which support the plaintiff’s assertions of muscle spasm and the need for medication to treat it;
(e) Dr Doig, orthopaedic surgeon, provided two reports dated 20 June 2022 and 23 June 2023. Dr Doig opined that the plaintiff’s radiology confirms that she has a “fracture healing with persistent displacement”;[40]
(f) In his June 2023 report, Dr Doig reported that:
“Fractures of the sacro-coccygeal segment often continue to cause persistent pain including difficulty sitting for long periods of time. In [the plaintiff’s] case, there appears to be an additional soft-tissue injury … impacting on her recovery.”[41]
(Emphasis added.); and
(g) Dr Doig accepts that the plaintiff’s condition restricts her from walking and driving for extended periods of time, from running and wearing high heels. The prognosis, according to Dr Doig, is “guarded”, given the plaintiff has had little improvement in the last twelve months.
[34]APCB 100
[35]Ibid
[36] Amended Defendant’s Court Book (“ADCB”) 49
[37]APCB 100
[38] APCB 100
[39] Ibid
[40] APCB 105
[41] APCB 107-108
Are the Plaintiff’s consequences substantially, mainly or predominantly referable to an organic cause?[42]
[42]Section 325(2)(h) of the Act; see also Meadows v Lichmore Pty Ltd [2013] VSCA 201
47Counsel for the defendant submitted that, on the evidence before the Court, it cannot be said that the plaintiff’s consequences have a substantial organic basis and therefore the plaintiff must go on to disentangle the physical contribution to the pain and suffering from the psychological. This was the defendant’s primary contention.
48In relation to the reports of Dr Doig and Professor Bittar, counsel for the defendant submitted that their reports are flawed due to an “incomplete history”, namely, each expert expressed their opinion without the benefit of the most recent x-ray report dated 6 February 2023.[43]
[43] T80 ꟷ T82
49In support of its primary contention, the defendant relied on the combined effect of a number of pieces of evidence, in particular, the following items of evidence:
(a) the opinion of Dr Rahgozar that the injury has now resolved;
(b) two x-ray reports dated March 2022 and February 2023, confirming that the fracture line has healed;
(c) alleged conversations between the plaintiff and Dr Bhurgri which were admitted by the plaintiff, and which were to the effect that the fracture line has healed; and
(d) alleged “evidence of a substantial non-organic component”.[44]
[44] Defendant’s written submissions at paragraph 8
50Dr Rahgozar is an occupational physician. In June 2023, Dr Rahgozar conducted one examination of the plaintiff at the request of the defendant. Prior to the examination, Dr Rahgozar received a history of current symptoms:
“… severe pain that she rated 7/10 in her lower lumbosacral spine region, pelvic girdle and both buttocks. … worsening of this pain towards the end of the day [with] … radiation….difficulty with initiation of sleep and occasional interruption of sleep by pain.”[45]
[45]ADCB 101
51The plaintiff also reported an inability to return to pre-injury activities like walking and soccer and pre injury work.[46]
[46]ADCB 102
52Dr Rahgozar conducted a clinical examination in which he observed the plaintiff’s gait and reported that she could not perform a full squat, and that she reported tenderness on very fine touch and palpation of the mid-thoracic and lumbar spine regions. Dr Rahgozar noted that range of motion and neurological examination of the lumbar spine and lower limbs both appeared normal.[47] On the basis of these findings, Dr Rahgozar concluded that the initial injury had resolved.
[47]Ibid
53Dr Rahgozar posited an alternative diagnostic formulation to explain the plaintiff’s experience of pain and restriction. He opined that the pain is:
“… regarded mostly non-specific in the context of a number of psychosocial risk factors … . These are
i. a concurrent mental health condition,
ii. inappropriate prolonged hands-on treatment … ,
iii. fear avoidance …
iv. stressors associated with her full-time studies.”[48]
[48] ADCB 103
54I find Dr Rahgozar’s opinion that the injury has now resolved to be against the weight of the evidence.
55Further, there are four reasons for rejecting Dr Rahgozar’s opinion on the substantial organic-basis issue.
56First, Dr Rahgozar is alone in his opinion, which is against the weight of the evidence.
57Second, Dr Rahgozar’s opinion about resolution and diagnostic formulation was made in June 2023 by taking into account “today’s presentation”, which included a complaint by the plaintiff of pain in the back, but she “does not take significant analgesics and has full range of motion”.[49]
[49] ADCB 102
58In relation to the absence of recent radiology in Dr Rahgozar’s report, I note the following:
(a) There is a significant flaw in the defendant’s reliance on Dr Rahgozar’s opinion, while seeking to undermine the opinions of Dr Doig and Professor Bittar;
(b) Dr Rahgozar’s opinion was provided without reference to radiology post- dating 2021. Dr Doig’s opinion was provided after having regard to more up-to-date radiology taken in March 2022;
(c) Counsel for the defendant was asked about this apparent flaw and submitted that Dr Rahgozar’s report was based on the plaintiff’s presentation on clinical examination, whereas Dr Doig’s report was based on the content of the radiology;[50]
(d) I reject that submission. It is clear that Dr Doig undertook a clinical examination of the plaintiff which was in very similar terms to that undertaken by Dr Rahgozar. The key difference between the two opinions is that Dr Doig also had the benefit of having assessed the plaintiff once before and he had regard to more recent radiology (March 2022), which Dr Rahgozar did not have;
(e) On balance, I find that Dr Doig’s opinion was better informed than that of Dr Rahgozar. Dr Doig was therefore in a superior position to express an opinion, as he was in possession of the more recent x-rays at the time he undertook his clinical assessment of the plaintiff, whereas Dr Rahgozar was reliant only on the clinical assessment;
(f) There is no proper basis on which the Court can put aside Dr Doig’s opinion for lack of recent radiology and at the same time uphold Dr Rahgozar’s opinion, which was provided with more out-of-date radiology; and
(g) Professor Bittar also only had the 2021 radiology, but arrived at a different conclusion to Dr Rahgozar.[51] Professor Bittar conducted a clinical examination of the plaintiff and observed muscle spasm, which he found to be consistent with the alleged injury. I prefer his opinion over that of Dr Rahgozar, as Professor Bittar is a neurosurgeon and better qualified. Further, Professor Bittar’s opinion is consistent with the weight of the evidence.
[50] T167
[51] APCB 99
59Third, Dr Rahgozar’s diagnostic formulation that the plaintiff’s current pain is caused by various “psychosocial factors” is more in the province of a psychiatrist than an occupational physician, and outside his expertise:[52]
(a) In this regard, I accept the submission made on behalf of the plaintiff that the correct expert to provide an opinion about whether her pain is non-organic is physiatrist, Dr Chris Grant. Dr Grant’s opinion is that “her pain appears to have a genuine anatomical origin, and is not a psychogenic pain”;[53] and
(b) I prefer the opinion of Dr Grant on the question whether there is a psychiatric cause for the plaintiff’s pain, as he is better qualified to express such an opinion.
[52] Giankos v SPC ArdmonaOperations Ltd (2011) 34 VR 120 at paragraph [96]
[53] ADCB 111
60Fourth, Dr Rahgozar’s opinion is expressly contingent on nuclear bone testing, which was never conducted. Dr Rahgozar specified in his report that there was “a degree of uncertainty” associated with his diagnostic formulation, which uncertainty could only be resolved by a nuclear bone scan.[54]
[54]ADCB 103
61The defendant also relied on two x-ray reports, dated 18 March 2022 and 6 February 2023, in support of its submission that there is no substantial organic basis for the plaintiff’s alleged pain and suffering consequences.
62No expert evidence was tendered before the Court about the clinical significance of the 6 February 2023 x-ray report. The Court was asked to make findings about what the report shows and whether it is consistent with the previous report, unassisted by any expert evidence.
63The defendant submitted that the failure to provide expert opinion on the meaning of the 6 February 2023 report was a flaw in the plaintiff’s case and failure to explain it means the plaintiff cannot establish a substantial organic basis.
64Acceptance of this submission is contingent on a finding that the report contained “a material difference”[55] to the March 2022 x-ray report. I consider that, in the absence of expert evidence, I am unable to make such a finding and I reject the submission.
[55] T165
65I prefer the evidence of Dr Doig, who is an orthopaedic surgeon and well qualified to express an opinion based on his assessment, the 18 March 2022 imaging and the history provided.
66As stated earlier in these reasons, Dr Doig considered the “18 March 2022 x-ray”,[56] and opined that the plaintiff’s fracture was healing with persistent displacement. Dr Doig considered, in addition, that there was also a soft-tissue injury to the lumbar spine which was also impacting on her recovery.
[56]The letter of instruction to Dr Doig (Exhibit P11) correctly describes the x-ray report as being dated 18 March 2022, but Dr Doig’s report incorrectly describes it as a February 2022 x-ray, APCB 105.
67Further in support of its submission that there was no substantial organic basis, the defendant also relied on the plaintiff’s alleged admissions of her discussion with Dr Bhurgri in February 2023 that the sacral fracture “has healed”.
68The plaintiff admitted that, in February 2023, after she had undergone the x-ray, Dr Bhurgri explained to her that the fracture line had healed. That assertion, however, is not contained in Dr Bhurgri’s report dated 21 August 2023.
69Dr Bhurgri’s report was prepared after Dr Bhurgri requested and received the x-ray report dated 6 February 2023. The diagnosis contained in the report is “[p]osteriorly displaced sacral fracture with delayed healing”.[57] That is the opinion of Dr Bhurgri on the question whether the fracture had healed.
[57]APCB 78
70I give little weight to the asserted opinion of Dr Bhurgri contained in the plaintiff’s admission of what Dr Bhurgri allegedly told her in February 2023.
71In her report, Dr Bhurgri diagnosed a posteriorly-displaced sacral fracture accompanied by “persistent back pain”, noting no improvement in the last six months.[58] This opinion cannot stand together with the defendant’s submission that Dr Bhurgri considers that the plaintiff’s fracture has healed.[59]
[58]APCB 78
[59] APCB 78
72There is some force in the submission made on behalf of the plaintiff that the diagnosis contained in the 21 August 2023 report must have been informed by the doctor’s receipt of the x-ray report dated 6 February 2023.
73However, in the absence of specific reference to the x-ray report and specific opinion as to its clinical significance, I am unable to be satisfied that Dr Bhurgri was expressing her opinion with specific reference to the report.
74Overall, as to diagnosis and prognosis, I prefer the evidence of the Dr Bhurgri, Dr Doig and Professor Bittar. Their opinions are consistent with one another on the aspects I regard as important (diagnosis, consequences and prognosis).
75I consider it of significance that Dr Bhurgri, Dr Doig and Professor Bittar all accept that the plaintiff has ongoing pain and restrictions attributable to the sacral fracture. In summary these are as follows:
(a) Dr Bhurgri accepted that the plaintiff had persistent pain and prescribed Norgesic medication to treat it. Dr Bhurgri continues to certify the plaintiff unfit to resume her pre-injury duties;
(b) Professor Bittar considered the plaintiff is permanently incapacitated for her pre-injury duties on account of the restrictions of movement, together with risk of increased pain on movement; and
(c) Dr Doig accepted that the plaintiff has had some improvement over time, however observed that her symptoms of localised tenderness remain unchanged. Dr Doig appears to have accepted that the plaintiff continues to experience “low grade back pain, worse with activity and more so on the right side, with difficulty sitting”.[60]
[60]APCB 105
76Taking into account the whole of the evidence, I find that the plaintiff’s pain, her limitations on sitting and standing, as well as on participation in social activities, are substantially, mainly or predominantly referable to an organic cause. There is no evidence of a substantial psychological or non-organic component. The presence of psychological factors, such as fear of further injury or stress associated with her domestic or academic situation, does not negate, and is not inconsistent with, the presence of a substantial organic cause for her pain.
77Counsel for the defendant conceded that, providing there is a substantial organic basis for the physical consequences, there was no need to disentangle.[61]
[61] T88 ꟷ T89
Treatment
78Dr Bhurgri initially recommended Panadol and Ibuprofen to assist with pain from the tailbone fracture.
79On 25 May 2021, the plaintiff began treatment with, physiotherapist, Mr McCann. At that time, she was undertaking her VCE and according to the report of Mr McCann, she was experiencing significant difficulty studying and sitting for exams. The treatment continues until the present day. Currently, the plaintiff is still attending physiotherapy, weekly on average.
80The plaintiff also undertakes strengthening exercises at the local gym a few times a week, as recommended by the physiotherapist.
81The plaintiff has had only one consultation with an osteopath and has attended some hydrotherapy sessions, but was unable to continue with these due to a clash with her classes at university.
82The plaintiff continues to attend on Dr Bhurgri and receives prescriptions for medication. Previously the plaintiff was prescribed Amitriptyline, 10 milligrams; Valpam, 2 milligrams and Ibuprofen. Currently, the plaintiff is taking Norgesic, prescribed to be taken as one tablet every eight hours, but the plaintiff’s evidence was that it made her drowsy and she only takes one tablet at night time.
Permanence and need for ongoing treatment
83On 20 June 2022, Dr Doig provided an independent impairment benefit assessment of the plaintiff’s injury. In that assessment, Dr Doig opined that the plaintiff had a displaced fracture of the S5 sacral segment and a soft-tissue injury to the lower back. Dr Doig prognosticated a poor outcome in terms of resumption of pre-injury activity levels.[62]
[62] APCB 113
84In his June 2023 report, Dr Doig again considered the prognosis to be “guarded”, given the unchanged symptoms of localised tenderness which had persisted for almost twelve months since his last assessment.[63]
[63] APCB 108
85Professor Bittar opined that the plaintiff is permanently incapacitated for her pre-injury duties by reason of the injury.[64]
[64]APCB 101
86Treating physiotherapist, Mr McCann, reported that there was hope for a full recovery, but was uncertain whether it could ever be achieved. More physiotherapy treatment was recommended by Mr McCann to assist with pain and mobility.[65]
[65]APCB 76
87Dr Bhurgri, in her most recent report, opined that the plaintiff’s condition is unlikely to materially improve or deteriorate in the next year and noted there had not been any improvement in the last six months. The prognosis, according to Dr Bhurgri, is uncertain and “[c]ounselling, pain management, Physio/ Osteo, Hydrotherapy, medication and rest”[66] were the future treatment requirements. Dr Bhurgri is a treating GP. The plaintiff has been attending this doctor since approximately January 2020[67] and Dr Bhurgri has had the significant advantage of having assessed the plaintiff on multiple occasions.[68]
[66] APCB 78
[67] ADCB 22
[68] Victorian WorkCover Authority v Kalenjuk [2017] VSCA 17 at paragraph [56]
88Taking all of the evidence into account, I am satisfied that the plaintiff’s condition is permanent, in that it will last for, and through, the foreseeable future and will require treatment in the form of medication, exercise and various therapies.
Assessing the Plaintiff’s levels of pain
89Counsel for the defendant submitted that the amount and type of medication does not bespeak of very considerable pain, especially in the context of having been able to undertake full-time study.
90I reject that submission. The plaintiff’s evidence, which I accept, is that she has persistent daily pain of varying intensity, it affects her sleep, and the medication causes her drowsiness, so she only takes one tablet at night for that reason.
91With the exception of Dr Rahgozar, all experts accept that the plaintiff has ongoing pain which impacts on her ability to engage in various activities. The weight of medical opinion is that the plaintiff continues to experience pain. Even accepting it is “low grade pain”, as described by Dr Doig, I consider that such pain which occurs on a daily basis and requires ongoing medication and other therapies, raises a real prospect of a “very considerable” consequence.[69]
[69]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 (per Dodds-Streeton JA) at paragraph [199]
92Taking all of the evidence into account, I find the consequences of the plaintiff’s sacral fracture injury are as follows:
(a) Persistent daily pain affected by activity, as described by the plaintiff and Dr Bhurgri, and as accepted by Dr Doig and Professor Bittar;
(b) The need to take medication (currently Norgesic);
(c) Pain and limitation of movement and/or limitation on sitting impacting on her studies. I note, in particular, that the plaintiff is now in the first year of a five-year university degree and is required to undergo practical as well as theoretical classes, which she finds a cause of pain and discomfort. Further pain and discomfort occurs when the plaintiff has to commute to and from university and complete assignments;
(d) Ongoing limitation on employment constituted by an inability to return to her pre-injury employment as certified by Dr Bhurgri and Professor Bittar. I accept that this is not employment for which she is currently studying, but was more in the realm of an after-school job, nevertheless, it is a consequence to her that this kind of work is no longer available while she studies at university;
(e) Impact on social and recreational activities, such that she is unable to join in activities such as ice skating or rock climbing, road trips, jet skiing and social events; and
(f) Inability to run and play soccer.
Assessment of the Plaintiff’s case
93The plaintiff is now twenty years old. She was seventeen years old when she suffered the sacral fracture. I find it is a very considerable consequence that pain has been a significant feature of her life for the last three years and will continue into the foreseeable future. It has affected every aspect of her life. Although she has been able to qualify for and undertake a degree in osteopathy, this has been challenging for her, due to the presence and persistence of pain and limitation of movement.
94The plaintiff is unable to join in social and recreational activities with her friends on account of the pain and restriction from the injury. The plaintiff suffers discomfort and pain when she attends classes at university and when completing assignments. At present, Dr Bhurgri has prescribed Norgesic medication to be taken daily.
95Aside from the opinion of Dr Rahgozar, there is no expert opinion which suggests the consequences on the plaintiff will abate any time soon. As the evidence stands, the plaintiff will continue to experience the pain and limitations of her injury for the foreseeable future. She is only twenty years old and I regard it of some significance that she is so severely restricted in her life.
96The plaintiff intends to continue studying at university for the next four years. Her life as a student will, on the evidence, continue to be affected by her pain. Her ability to study, to complete assignments, and to participate in university life, will continue to be affected by her injury.
97I take into account the range of possible impairments and find that, although it is a borderline case, the plaintiff has met the test of “very considerable”.
98
On 18 October 2023, I received brief submissions and ruled on certification for plaintiff counsel’s fees and made orders by consent in relation to costs.
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