Estipona v Autoliv Australia Pty Ltd
[2011] VCC 872
•11 July 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-05435
| REINA ESTIPONA | Plaintiff |
| v | |
| AUTOLIV AUSTRALIA PTY LIMITED | Defendant |
---
| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 & 3 November, 2010 |
| DATE OF JUDGMENT: | 11 July 2011 |
| CASE MAY BE CITED AS: | Estipona v Autoliv Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 872 |
REASONS FOR JUDGMENT
---
Catchwords: Serious injury application; Section 134AB Accident Compensation Act 1985; claim under part(a) and part(c) of definition; pain and suffering and loss of earning capacity; whether ongoing consequences of injury to back result in permanent loss of earning capacity of at least 40%; whether ongoing consequences of mental or behavioural disturbance result in permanent loss of earning capacity of at least 40%.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D.F. Hore-Lacy SC with | Holding Redlich |
| Mr M.T. Schulze | ||
| For the Defendant | Mr J. O’Brien with | Hall & Wilcox |
| Ms A.L. Wood | ||
| HER HONOUR: |
1 Mrs Reina Estipona applies for leave to bring proceedings to claim damages in respect of injuries she alleges she suffered as a result of her employment with the defendant. To obtain leave she must satisfy the court that she suffered a “serious injury” within the definitions and restrictions imposed under s.134AB of the Accident Compensation Act 1985 (“the Act”). She relies on both parts (a) and (c) of the definition of “serious injury”, and seeks leave to claim both pain and suffering and pecuniary loss damages.
2 Mrs Estipona claims to have suffered injury to her cervical and lumbar spines as a result of employment duties with the defendant, and that those injuries have resulted in permanent serious impairment of the function of her spine at both cervical and lumbar levels[1]. To meet the test for this basis of her application, she must satisfy the Court that the consequences to her of this injury, when judged by comparison with other cases in the range of possible impairments of a body function[2], can be fairly described as being more than significant or marked, and as being at least very considerable.[3]
[1] Under part (a) of definition of “serious injury” in s 134AB(37)
[2] Sub-section 134AB(38)(b)
[3] Sub-section 134AB(38)(c)
3 Mrs Estipona also claims that, as a result of the injury to her spine, she suffered psychiatric injury which constitutes severe permanent mental or behavioural disturbance or disorder.[4] To satisfy this basis of her application, she must satisfy the court that the consequences to her of this injury when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders must be able to fairly be described as being more than serious, to the extent of being severe.[5]
[4] Under part (c) of definition of serious injury in s.134AB(37)
[5] Sub-section 134AB(38)(d)
4 In order to obtain leave to bring a claim for damages in respect of loss of earning capacity, whether as a result of the alleged physical injury or the psychological injury, she must satisfy the court that she has a permanent loss of earning capacity of at least 40 per cent, calculated under the statutory formula[6] .
[6] S 134AB(38)
5 The defendant contests each part of her claim. It argues that any ongoing consequences of any injury she suffered during her employment do not meet the definition of “serious” in respect of any spinal injury, or “severe” in respect of any mental or behavioural disturbance or disorder. In particular, it argues:
(a) that any organic injury she suffered was musculo-ligamentous and has long since ceased to contribute to any of her alleged symptoms or their consequences; (b) that she is not physically incapacitated from fulltime employment of a clerical or non-labouring nature, and could be working as such earning at least 60 per cent of the earnings she would have received but for her injuries; (c) that she suffered no diagnosable psychiatric or psychological condition or disorder; alternatively, if she did, then the consequences are far from severe; (d) that she has no psychiatric incapacity for full-time suitable employment. 6 The evidence consisted of the documents set out in the attached schedule and the oral evidence of Mrs Estipona, who was the only witness required for cross-examination.
7 As in most cases of this nature, the credibility and reliability of the plaintiff’s own evidence is very important because not only the Court but also doctors whose opinions are in evidence are heavily dependent upon the plaintiff’s own version of the timing and extent of symptoms and their impact on her life.
8 My impression of Mrs Estipona as she gave her evidence was that she was answering in a genuine and honest manner. She understands and speaks English well, although it is not her first language, and occasionally there was some misunderstanding of terms. Her manner seemed to me to reflect that she was being careful to concentrate, and endeavouring to answer accurately, did so to the best of her recollection, and I have taken her evidence as credible and reliable. She appeared to me to be able to explain about her former employment and her symptoms and treatment, and to engage with questions by agreeing or disagreeing or qualifying propositions. This in my view was also relevant to her application, as she did not appear to me to be affected by any significant cognitive problems with concentration or memory, nor to be affected by medication in any way that impaired her ability to concentrate and give answers in a straightforward manner.
Findings as to plaintiff’s background and circumstances
9 Mrs Estipona is now aged 46. She was born in the Philippines where she completed school – secondary schooling being four years – including learning English. She then commenced a degree course at university in accounting and business, which she completed in 1987, having in the meantime married and given birth to the first two of her children. She attempted, but did not pass, exams to become an accountant.
10 She worked for eight or nine years in regional and provincial government forestry departments, for about three of those years as a cash clerk, receiving payments and vouchers, then doing bookkeeping and payrolls. She participated in training as required within those departments, including obtaining requisite computer and internet skills, and involvement in one or more one-day strategic planning meeting. During that period of work she gave birth to a third child.
11 In March 1999 she and her husband and their three children migrated to Australia. The only further training she obtained after arrival was in operating “MYOB 9”. Although she would have liked to obtain office-based accounting type work, none was available for her and as earning income was a priority she initially found some part-time factory work, for Fina then Hugo Boss. In about February 2000 began fulltime employment, as a production worker with the defendant, where her husband already worked as a forklift driver, but on a different shift so that they could share the caring for their children. In August 2001 their fourth child was born. She had taken maternity leave and returned to work by December 2001.
12 Before commencing work with the defendant, Mrs Estipona was in good health apart from occasional asthma. She led a busy and active life - working, running a household and a family of four children, the youngest a baby, and was also involved with the local Catholic church, and its social events and outings. After coming to Australia she had become an enthusiastic gardener, growing vegetables and flowers in their garden. Previously she had played competition volleyball, and she used to play it for fun with her older children. She said that she also enjoyed regular ballroom dancing with her husband, but I am uncertain whether that continued after they came to Australia.
The injury
13 When she returned to work after maternity leave, in about December 2001, she was put to work mainly on the passenger airbags section of the production line. That work was the heaviest, involving fast and repetitive movements, bending, stretching and lifting, and a considerable amount of the work was above shoulder height. She began experiencing pain in her neck and shoulders, worse on the right side compared with the left, and requested to be moved to a less physically demanding part of the production line. That eventually occurred when she was moved to drivers’ airbags, which were not as large or as physically demanding. However, in November 2002 she was moved back to the passenger airbags. She says that at that stage the pain in her neck and right shoulder recurred, and she began to experience significant pain in her lower back. On cross-examination she agreed that the pain had appeared to move down from her neck to her lower back, as she had described to a number of doctors.
14 In December 2002 she first consulted a doctor in respect of the symptoms. That was Dr Lay of Main Street, Greensborough, who was her family general practitioner at that time[7]. Dr Lay noted a lot of spasm of muscles on the right side of the neck, and tenderness on examination. She was diagnosed with muscle strain and spasm, was prescribed non-steroidal anti-inflammatory medication and analgesics, and given a certificate for modified work duties. Reviewed on 9 January 2003 there had been some improvement, but she was given a further medical certificate and referred for physiotherapy. A return to work on modified duties from 20 January 2003 was arranged, with ongoing physiotherapy, but she returned to the doctor on 5 February 2003 due to lower back pain. An x-ray of her lumbosacral spine was ordered but was reported as normal.
[7] Exhibit F
15 She attended the clinic over the next month due to ongoing symptoms of neck and back pain, and was certified for reduced hours and modified self-paced duties with anti-inflammatory medication and physiotherapy. On examination the doctor still found muscle spasm, as well as complaint of pain. She was last seen there on 7 March 2003, complaining of recurrence of neck and thoracic pain after doing too much at work, and was maintained on a certificate for restrictions of four hours per day, five days per week, self-paced work, breaks of ten minutes per hour, and no outward or upward reaching or lifting greater than five kilograms.
16 In March 2003 the family moved from Eltham to Craigieburn, as a result of which she changed to a new medical centre, being Lorne Street Medical Centre in Lalor, where she has mainly seen Dr Pauline Pahtsivanidis.
17 Over the following years, she complained to Dr Pahtsivanidis of pain, in her shoulders and neck and also in her lower back and radiating into her left leg. She was referred for physical treatments, including osteopathic treatment as well as physiotherapy from time to time. She was referred to various specialists - in November 2003 to Mr Brazenor, neurosurgeon; in December 2005 to orthopaedic surgeon Mr Peter Wilde, and to him again in late 2007. She was referred to Mr Roderick Cunningham, orthopaedic surgeon, for her right shoulder, in late 2006.
18 Over the years from 2003 to 2006 she had various periods off work when pain was exacerbated, but when return-to-work programs were arranged she cooperated and responded to those.
19 From 2005 to 2007, when at work, she was mainly on the seatbelt line which I am satisfied was easier than doing airbags. The seatbelt line involved mainly work at a sewing machine, and also buckle assembly, and she coped with it much of the time but with intermittent exacerbations of pain in her back and time off work or on lesser hours.
20 In February 2006 she suffered a severe bout of low back pain with pain radiation into her left thigh, buttock and legs.
21 In October 2006 she was diagnosed with Bilateral Carpel Tunnel Syndrome and treated by Dr Graham Symington. She says that she had had these symptoms since 2002, and that they still continue in her right wrist and hand, but these are not part of her claim in this proceeding.
22 In 2007 her back pain became worse - she calls it “intense” - and she attended at the Emergency Department at the Northern Hospital with severe back pain on 19 September 2007, and underwent an MRI scan.
23 In late September 2007 she applied and was accepted for redundancy from the defendant, and her employment terminated in late September 2007.
24 Since September 2007 the plaintiff has not engaged in any other employment. She attended Centrelink and says and I accept that she was willing to apply for jobs if they were ones with which she felt she could cope with so many pains. In cross-examination she said she did not ask specifically if there was a prospect of obtaining administrative work. Although it was the work she had done for many years before coming to Australia, and was what she would have liked to continue to do in Australia, she believes that she could not do it now because of her pain - “my brain says yes but my body is saying no”.
25 The plaintiff was referred to a psychologist, Mr Mavroudis, in 2003. At about the time she was seeing him she was also referred to Cedar Court Rehabilitation Centre for an assessment for a multidisciplinary rehabilitation program, and she engaged in a rehabilitation program there between mid-May to mid-June 2003. Dr Lewinsky supervised this program. In the meantime she had managed to return to work on limited hours.
26 She later underwent further psychological counselling with Ms Carmen Steiger in conjunction with a pain management program through Dr Lim. That ceased when WorkCover discontinued payments. She was also referred to Dr Whitehouse, psychiatrist, in 2008. She now sees Dr Whitehouse approximately once a month, now funded through Medicare.
27 At the time of the hearing she listed her medication as Cymbalta, daily as an anti-depressant, and Lyrica for pain, which is prescribed and which she takes when needed for three days at a time. In addition she takes over-the-counter analgesics – Nurofen, Panadol and Panadeine - when needed.
Medical opinion
28 Dr Pahtsivanidis, who as her general practitioner has overseen the plaintiff’s treatment since March 2003, describes her[8] as continuing to suffer from symptoms of pain and restriction of neck movements and associated headaches, bilateral shoulder pain and restriction of movement, bilateral hand numbness and weakness, bilateral shoulder girdle and thoracic spine pain and restriction of movement, and lumbosacral spinal pain and restriction of movement. The plaintiff complains of limited tolerance of standing, walking and sitting, difficulty bending and lifting weights, bilateral leg pain and numbness presenting difficulty in walking and standing. In addition, she describes the plaintiff as suffering depression with quite severe loss of enjoyment of life and feelings of hopelessness and pessimism for the future, and insomnia.
[8] Exhibit ?????
29 Dr Pahtsivinidis diagnoses cervical spondylosis and soft tissue sprain; thoracic spine and interscapular muscle sprain; lumbar spondylosis with disc lesions at L4/L5 and L5/S1, and bilateral sciatica; bilateral shoulder injury; depression state and insomnia. She notes that as the plaintiff has been suffering with her pain for the last seven years without improvement, and as her condition has stabilised, the prognosis is that she is not likely to recover in the foreseeable future. In her last report she regarded Mrs Estipona as currently unfit for work and likely to remain the same in the future, so her prognosis was considered to be poor.
30 A Medical Panel opinion dated 11 May 2007[9] was that she was suffering from mild residual symptoms of a soft tissue injury to her neck and right shoulder region, right Carpel Tunnel Syndrome, and aggravation of lumbar disc degeneration with referred symptoms to the left leg but without radiculopathy relevant to the claimed injuries to her back, neck, right shoulder and right arm.
[9] Exhibit B
31 Dr James Rowe, occupational physician, examined the plaintiff on behalf of the defendant’s claims agent in May, July and October 2003. When he saw her in May 2003 she had been off work for two months. His opinion was that underlying degeneration of her posterior joints or facetal joints may have been temporarily aggravated by her work, and he considered she could work fulltime but at modified duties and she was not showing signs of being depressed or anxious. When he last saw her in October 2003, he considered that work was no longer a significant or material contributing factor to her neck or back condition, and he considered there were inconsistencies in her presentation and that from a physical point of view there was no reason why she could not return to fulltime work without modification. As the plaintiff did in fact return to fulltime work with the defendant, at various tasks, and suffered further exacerbations of low back pain, and it is more than seven years since he last examined her, I do not consider Dr Rowe’s opinion of much assistance in the present application.
32 Dr Stephen Lewinsky, of Epworth Rehabilitation, first assessed Mrs Estipona on 1 May 2003 as part of a multidisciplinary assessment for an early intervention program. She was describing pain mainly across the low back, worse on the right side but also along the cervical spine going out to the right shoulder and down the right arm.
33 A worksite assessment was undertaken by an occupational therapist as part of the overall team and assessed the duties as generally light but repetitive and requiring long periods of standing. CT scan of the lumbar spine in March 2003 had indicated a minor disc bulge at L3/4 … minor hypertrophy of the facet joints … L4/5 minor hypertrophy of the facet joints slightly more on the left … L5/S1 small triangular disc bulge … some asymmetry of facet joints with minor hypertrophy. Dr Lewinsky’s diagnosis was of cervical sprain and lumbar sprain. He recommended a treatment program including some community-based psychology, and she commenced a graduated return to work and acknowledged improvement by the end of the program in June 2003. He considered that her presentation was with non-specific symptoms suggestive of irritation of the cervical and lumbar structures, that there were structural changes in her lumbar spine of some significance but when last seen these would have been expected to be manageable, and she had returned to work.
34 Mr Roderick Cunningham, orthopaedic surgeon, saw her in January 2006 in relation to pain in her right shoulder and right side of her neck which was said to have started in about June 2002. After examination and review of ultrasound examinations, his diagnosis was of a subacromial bursitis on the right side, and she was referred to Mr McCormack, physiotherapist, for muscle building exercises in the shoulder.
35 Mr Peter Wilde, orthopaedic surgeon, saw her in December 2005 and again in September 2007 on referrals from Dr Pahtsivanidis, both times for advice regarding the need for possible surgery. He had copies of various radiological investigations, including both cervical and lumbar MRI, was aware of her undergoing osteopathy and a pain management course and her having been seen by Mr Brazenor in 2003. On physical examination Mr Wilde considered her a sincere and genuine woman, with diminished lumbar spinal movements but no definite neurological findings in her legs. Cervical movements were diminished with no definite neurological findings in her arms. He felt the right shoulder demonstrated evidence of rotator cuff tendonitis. He considered that the lumbar MRI scan showed an annular tear of the lumbosacral disc, centrally but with no neural compressive lesion. His opinion was that there was no easy solution for Mrs Estipona’s chronic pain. In December 2005 he discussed with her the surgical option of a lumbosacral fusion and even a disc replacement, but as she was working fulltime and seemed to be coping quite well (which he considered a credit to her positive mind approach), he was very reluctant to recommend surgery. He told her that the result of surgery was impossible to guarantee, that her symptoms were not bad enough to justify surgical intervention at that stage, and he encouraged her to battle on as best she could using painkillers, the osteopath, daily walks as advised by Mr Brazenor, and to spare herself at work by avoiding heavy bending, lifting and twisting.
36 Mr Wilde saw her again in September 2007 when she continued to complain of pain in her back, neck and both shoulders, especially the left hand side, and symptoms into her hands. At that stage she still continued to work fulltime with her old employer. He noted she seemed quite miserable at that consultation, and told him that she felt threatened in the workplace. Her main complaint was of low back pain extending into her left leg but did not describe symptoms of radiculopathy. He considered her anxious and depressed and thought she showed strong features of an Adjustment Disorder, although that was not his area. He strongly discouraged her from seeking a surgical solution because he considered it unlikely to produce a satisfactory outcome and may leave her worse. He said he suspected that if she were to undergo a fusion for back pain, that would put her off work for at least 12 months, and in essence put her out of work completely and forever. His diagnosis was lumbar and cervical spondylosis with radiculopathy, as well as left shoulder subacromial bursitis and he felt the nature of her heavy manual work had been contributory to the onset of those. He felt surgery was unlikely to be appropriate in the foreseeable future, her prognosis was poor and he expected that she would always suffer with low grade symptoms of chronic lumbar and cervical pain and stiffness and she would have to modify personal and work activities to accommodate her symptoms to avoid further deterioration. At the time she saw him she was working fulltime but told him she had applied for a redundancy. He encouraged her to stay at her job but with restrictions on manual tasks, and recommended she be referred to a psychiatrist or psychologist to assess her depression and anxiety. He considered she should not return to physical or manual work but continue with her then present employer with restrictions applied to manual aspects of her job.
37 Mr Wilde reviewed Mrs Estipona for medico-legal purposes in September 2010. She had not been working since September 2007 and told him she could not work because her “pain is too bad”, and that she could not do anything and her life was quite miserable. Mr Wilde felt physical examination revealed an exaggerated response. He reviewed her recent MRI scan which showed a minor annular tear at L5/S1 not causing neural compression. He considered and explained to her that the pain was arising from a lumbosacral disc injury, but gradually over time things would improve and he was not prepared to offer her surgery as he felt the results of spinal fusion or disc replacement for annular tears in her setting are disappointing. She told him she was desperate to have an operation and he felt that in itself was not a good prognostic feature for a satisfactory outcome and recommended a second opinion “from another sensible spinal surgeon, who is not over enthusiastic about surgical treatment in this clinical setting”. He considered the prognosis poor, and expected that she would always suffer with low grade symptoms of chronic lumbar and cervical pain and stiffness and that she would have to modify personal and work activities to accommodate her symptoms to avoid further deterioration.
38 Mr Stan Schofield, orthopaedic surgeon, assessed her for a medico-legal report in February 2010.[10] On examination he found her pleasant and honest. She walked with a slight antalgic gait affecting her left leg. She was acutely tender over significant lumbar lordosis and he noted some wasting of her left buttock. She had normal reflexes but reduced sensation of a non-dermatomal distribution in the left leg. She had definite weakness of dorsiflexion and inversion of the left foot, with a measured one centimetre wasting of the left calf. He arranged for x-rays of the lumbar spine, which showed narrowing of the lumbosacral disc compared with all other disc levels. In the erect views there was a greater degree of reduction of disc height at the lumbosacral level at its posterior margin compared with the disc height at L4/5 and the others, and he considered this indicated that there is deflation due to degenerative change at the lumbosacral level.
[10] Exhibit N
39 Mr Schofied’s view was that the low back pain is more severe than the neck, and that she does have evidence of radiculopathy. He noted that the last MRI scan was two and a half years ago, and in view of the recent x-ray in which the disc space was reduced, it was likely that if an MRI in the vertical position, as opposed to horizontal, were done any pathology would more equivalent to a prolapse. Indeed, he noted that he expected even a horizontal view to show a worsening of her condition in that disc area. He recommended ultrasound for her ongoing problems with her right shoulder to determine the current state of the rotator cuff. His diagnosis was aggravation of degenerative change at the lumbar spine, onset of rotator cuff tear in the right shoulder and aggravation of cervical degenerative change causing referred right arm pain, in addition to evidence of right Carpel Tunnel Syndrome. He considered her employment had been a contributing factor to all of these conditions, that her condition had stabilised, and that as a result of the injuries she was not fit to resume her pre-injury occupation and had also been affected in normal house duties, social and leisure activities.
40 In a supplementary report in August 2010, after MRI scans of the cervical and lumbar spines were obtained, he found the only abnormality of the cervical spine was a minor right paracentral disc bulge at C4/5 but there was a normal signal. As to the lumbar spine, there was a central annular fissure and a mild central broad-based disc protrusion which was non-compressive. He noted that although the MRI scan of the lumbar spine reported a non-compressive prolapse at the lumbosacral level, that test was non-weight bearing, and in the presence of a weakened and prolapsed posterior annulus, weight bearing and especially long standing in the extended position, is likely to cause an increase in that compression. Therefore in his view these work duties were responsible for the radiculopathy which had affected her leg. His diagnosis was aggravation of pre-existing degenerative changes in the cervical spine causing at least in part referred pain into the right arm. He also believed that her work was likely to have been responsible for the current symptoms and signs in her right shoulder of bursitis and a positive impingement.
41 As a result of her injuries he considered her not fit to resume her pre-injury occupation, and that she had been affected in her normal house duties, social and leisure activities. He considered she should be referred to an appropriate surgeon in the fields of spinal surgery and shoulder surgery, but did not feel surgery would be warranted in the neck unless symptoms increased. With regards to the lumbar spine, he thought it reasonable to consider continuing conservative treatment but in light of the radiculopathy, he advised a functional (vertical) MRI scan (in Sydney), and he thought if it demonstrated the degree of compression he expected, she may require surgical intervention.
42 Dr John Lange, occupational physician, examined the plaintiff in March and September 2004.[11] In the first examination Dr Lange considered that she may have evidence of right Carpel Tunnel Syndrome of a mild nature which might need investigation. He saw no ongoing organic basis for her symptoms of neck and low back pain. At that stage she was working three hours on alternative days, and his view was that she was fit to return to her normal duties. He considered she had had time to recover from any soft tissue injury that existed in December 2002.
[11] Exhibit 3
43 In September 2004, she had increased her hours to 33 per week, at sewing machine duties and assembling a number of different components. He noted that she complained of low back pain as an ongoing problem with some radiation into the left thigh. On this occasion Dr Lange noted her right shoulder complaints and recommended an ultrasound of her right shoulder. He noted previous investigations revealed a normal MRI of the cervical spine, and mild degenerative changes in the lumbar spine at the L5/S1 level and stated. Notwithstanding that in his earlier report he found no ongoing organic basis for her neck and low back symptoms, this time he stated that “Mrs Estipona’s condition continues to be attributable to her employment”. He noted she was working 33 hours per week and thought she should be able to increase up to fulltime hours over the following three months but did not recommend she undertake any work above shoulder height due to her right shoulder discomfort, and he considered ongoing massage was appropriate although to cease after approximately 12 weeks. He said investigation of her right shoulder and right carpel tunnel conditions was appropriate.
44 Dr David Barton, consultant occupational physician, examined the plaintiff for the defendant in January and September 2006.[12] His view was that minor radiological findings (he did not see an MRI) did not represent any particular clinical condition relevant to her symptoms and that she probably suffered a mild soft tissue injury as a result of the change in her work duties in 2002. He thought there were a significant number of functional components to her complaints, including generalised weakness and non-anatomical sensory changes in the right arm, no lack of muscle bulk in the right arm and what he thought were deliberate limitation of all right arm movements. He believed her condition could be considered to have physically resolved and that she was capable of undertaking normal work consistent with her age and vocational experience. He did not believe ongoing osteopathy or other passive treatments had any useful role, but that she needed medical reassurance and encouragement to return to normal physical activity.
[12] Exhibit 4
45 In September 2006 Dr Barton provided a report without re-examining the plaintiff, in response to the request to comment on reports from the osteopath, psychologist and general practitioner. He said he still held to the earlier opinions and felt her treating practitioners were simply re-enforcing her sick role without any clear therapeutic benefits.
46 In January 2008 he examined her again. There was no observed swelling, deformity or wasting in the lower limbs. Similarly he observed no swelling deformity or wasting of the upper limbs. He reported that there was some generalised tenderness in the neck region, and very gentle axial loading produced a dramatic increase in her reported neck and lower back pain with much grimacing and gasping. Examination of her back showed some generalised tenderness throughout, with very limited straight leg raising but ability to sit upright on the examination couch. He found reflexes normal in legs and arms, a marked reduction in muscle power throughout the whole of her right arm and left leg, and sensation to light touch was reduced throughout the right arm and lateral side of the left leg. He considered the Medical Panel’s opinion to be “a very soft diagnosis” interpreting it (on no basis apparent to me on the evidence) as indicating that the Panel did not think much of her condition. His opinion was that she may have originally had some mild physical problem, possibly a soft tissue injury, but that her condition now represents functional overlay.
47 Dr Barton did not accept that the presence of positive nerve conduction studies on the right implied that she had Carpel Tunnel Syndrome, as he found no symptoms of that condition and no clinical findings on examination. He believed she has a capacity for normal process and production work, and commented that she will not become crippled if she were to continue to do such work.
48 Dr Kevin Fraser, rheumatologist, examined the plaintiff for the defendant in September 2009 and August 2010.[13] He had radiology reports from 2003 to December 2007 available. His opinion was that most likely she developed a right Rotator Cuff Syndrome secondary to subacromial bursitis as a result of her activities at work, and noted that the shoulder ultrasounds had consistently supported that diagnosis and the current clinical findings suggested it had not resolved although it was fairly mild. He was not convinced that there was any other ongoing work-related injury.
[13] Exhibit 6
49 Dr Fraser did say that the plaintiff might have mild right Carpel Tunnel Syndrome, but does not accept as a general proposition that there is any association with occupational factors and that condition, at least not in middle- aged women. Although that is a view I have read from Dr Fraser in other cases, reports, I have not heard cogent argument for or against it from him or doctors with the contrary view. As the Carpel Tunnel Syndrome is not part of the present application I pay no further attention to that opinion.
50 Dr Fraser’s view of Mrs Estipona’s neck and back pain, was that there was significant overreaction, and that radiological imaging showed only minor age- relative degenerative changes in the lumbosacral region to which her symptoms and signs were out of proportion. He considered non-organic factors were contributing to her symptoms which made the prognosis poor, and felt it was unlikely that there would be any significant improvement in the foreseeable future. He was not convinced in relation to her low back that there was any significant functional incapacity as a result of the minor age- relative degenerative changes in the lumbosacral region.
Has the plaintiff suffered a serious injury under part (a)?
51 Although the plaintiff probably suffered injury to her right shoulder, and Carpel Tunnel Syndrome in her right wrist, this application was based on alleged impairment of her spine, and I do not take her complaints of pain and tingling symptoms in her right hand to be part of the consequences of the injury to her spine.
52 Notwithstanding the divergent views and, in particular, those of Drs Fraser, Lange, Barton and Rowe, I am satisfied on the basis of the orthopaedic opinions of Mr Wilde and Mr Schofield, together with the long-term observations of the treating general practitioner, Dr Pahtsivanidis, that Mrs Estipona suffered exacerbation of degenerative changes in her lumbar spine as a result of ongoing work duties from December 2002. Dr Rowe’s examinations were at a very early stage only, Dr Lange did not see an MRI scan of her lumbar spine, and Dr Barton and Dr Fraser made comments which in my view were not warranted or were contradicted by other evidence, as I have already specifically noted.
53 I am satisfied that she suffered neck pain as a result of her work duties, but not that the radiological findings are such as to support a discrete discal injury or aggravation of underlying degenerative change in her cervical spine.
54 I am satisfied from the opinions of Mr Wilde and Mr Schofield, that there is an annular tear at L5/S1. Although no neural compression is shown on MRI taken in the horizontal position, Mr Schofield’s view is that when weight- bearing there is likely to be compression, and he compares this with the narrowed intervertebral space on x-ray taken in the standing position, in 2010. Whether or not that is so, I am satisfied that there is an organic injury to her lumbar spine, which explains her complaints of ongoing and at times severe low back pain radiating into her left leg. I note that Mr Schofield found muscle wasting in her left calf, albeit only one centimetre, and abnormal reflex, both being signs of neurological involvement of an organic nature. I take Mr Wilde’s view to be that there is a significant organic injury, but one not amenable to surgery. I do not overlook his comments that there is a psychological component to her presentation, but I read his opinion as still supporting the basis of there being an organic injury to her lumbar spine contributing to significant symptoms of pain and consequences for her.
55 I note that original complaint of pain was as to shoulder and neck pain from reaching upwards and working above shoulder height in 2002, and that the onset of low back pain did not commence until early 2003, but I accept for the purposes of this application that the extent of work duties carried out by her from then onwards, albeit at times on reduced hours or moderated or lighter duties, is more likely than not to have contributed to the ongoing and ultimately chronic state of her back pain. Her perception of that pain has probably been enhanced by psychological factors, but I am satisfied for the purposes of this application that there is sufficient evidence to establish that her back pain not only originated as a result of her work duties, but ongoing work duties aggravated her lumbar spine degenerative changes to the extent that back pain has become chronic as a result.
56 The next question is what have been the consequences of that injury to her, and whether those consequences are permanent and serious enough to be fairly described as being more than significant or marked and at least very considerable when compared with other possible cases of impairment.
57 I am satisfied that prior to December 2001 Mrs Estipona was leading an active life unimpaired by back or neck pain or restriction of movement. She was married with four children, alternating her hours of work with her husband so that one or the other was available for the younger children. She did the family cooking, cleaning, gardening and enjoyed a social life with her family and through her church and its activities. I am satisfied from her work history in the Philippines, and after coming to Australia, that she was a lady well motivated to continue to work, and that that was her intention as she seemed able to manage both a home life and income producing occupation.
58 My assessment of the plaintiff is that she is focussed on her disabilities, but not that she is deliberately exaggerating or embellishing them. She describes the injuries as having changed her from a busy, active and independent woman into someone who is constantly trying to cope with pain and limitations.
59 I accept from her evidence that she suffers ongoing pain, in particular in her low back with radiation into her left leg, and that this pain limits her tolerance to sitting or standing for any length of time. She said during cross- examination that walking is the best. She was not challenged that her pain interrupts her sleep, such that she does not often get more than four to five hours of sleep, and often feels tired as a consequence during her waking hours. I also accept that she is unable to do many of the household tasks she used to do, and these are now done by her husband or children, including the cooking. These limitations inevitably will have created tension within her family and put strain on other members of the family, stress on her marriage, and those consequences inevitably make her more stressed about her condition. She cannot physically manage much gardening, cannot keep a vegetable garden now, and misses active gardening of her favourite orchids.
60 She requires medication when pain is bad, being Lyrica, which she takes for periods of three days at a time, and also over-the-counter analgesics including Panadeine and Nurofen when gastric consequences of Panadeine affect her.
61 Taking all of these consequences into account, and noting that she clearly was managing a busy home and work-life prior to this injury, I am satisfied that the consequences to her can fairly be described as more than significant or marked and at least very considerable as to pain and suffering and loss of enjoyment of life, and I find she has satisfied the definition of serious injury on that basis.
Loss of earning capacity
62 The plaintiff’s case is that she is, in effect, totally disabled from work for the foreseeable future. In particular, it is submitted that she has no current work capacity, is permanently unable to return to her pre-injury employment, is unable to return to suitable employment, and suffers and will permanently continue to suffer a loss of earning capacity of at least 40 per cent.
63 The plaintiff bears the onus of proving permanent loss of earning capacity of at least 40 per cent, and in doing so must prove that she could not be earning at least 60% of her pre-injury earnings in “suitable employment”, as defined, after rehabilitation or retraining, and where applicable the reasonableness of her attempts to participate in rehabilitation or retraining for alternative employment[14].
[14] Subsection 134 AB(38)(g)
64 The application of the statutory formula for assessing what the plaintiff’s earning capacity would have been without injury is complicated by several factors in this case, including that there is no precise date of onset of injury. As I have found that the injury by way of activation or exacerbation of her lumbar spinal condition with sequelae of left leg symptoms, is the most significant of her physical injuries the subject of this application, and the onset of low back symptoms was December 2002 or early 2003. I take that as the approximate date from which to assess her earning capacity for the statutory formula.
65 Secondly, she took some months (although I do not know how many) of maternity leave during the second half of 2001 as her baby was born in August 2001. I assume that that leave would have decreased her earnings in the financial year to 30 June 2002. Her highest earnings of all of the years produced in evidence[15] was for the financial year ending 30 June 2003, being the very year in which she suffered injury. I accept that over the following two years there were periods when she was off work due to the effects of her injuries, however, until April 2005 she was apparently in receipt of WorkCover payments when off work as a result of her injuries.
[15] Exhibit T
66 I find that that had she not suffered injury she would have been earning at least $37,000 gross per annum for the three years after the injury. I am satisfied that the figure of $37,000 gross most fairly represents her without injury earnings under the formula. I also note that three years ended more than five years ago, so that annual figure was likely to have increased by at least two or three per cent per year. I do not regard the defendant’s figure of $36,039 as sufficient to most fairly reflect her “without injury” earnings. In the circumstances, the plaintiff’s statement of calculation of earning capacity submits that the appropriate figure should be $42,000 gross per annum but apart from my assumption that it includes a mark-up for inflation since, does not explain how that figure is reached. Doing the best I can, allowing for some incremental increase but a figure relative to what the plaintiff had earned in the last full financial year prior to her injury, namely, to June 2001, and in the year following her injury, I consider that $40,000 gross per annum is appropriate.
67 The plaintiff relies on a report of a vocational assessment of Mrs Estipona’s capacity for suitable employment prepared by Ms Margaret Leitch of Evidex.[16] This was carried out in early June 2010. It was based on the assumption of diagnoses of injury to her lower back and to her neck, to her right shoulder and wrist, left shoulder and wrist, and major depression. It took into account what Ms Leitch knew of the plaintiff’s pre-injury vocational history and post- injury vocational history, assumed that she is capable of attending work for a maximum of three hours a day, three days per week, based on information in the medical reports and the other factors set out in paragraph 2.4.
[16] Exhibit R
68 The conclusion was that there was no commercially viable occupation in the open labour market for which she is likely to qualify meeting the definition of suitable employment and that that would continue for the foreseeable future.
69 The defendant relies on a vocational assessment by Ms Joanne Bryant and Ms Catherine Miller of CoWork Pty Ltd[17] prepared in April 2010. This report gives an entirely optimistic outlook for Mrs Estipona’s employability and capacity for work, provided it is not at physically demanding jobs such as her pre-injury work in a factory.
[17] Exhibit 7
70 I have difficulty placing any weight on the conclusions of this CoWork report, because portions of its assessment of the plaintiff’s capacity are, in my view, wholly illusory and not based on the evidence which I have heard. In particular, in paragraph 3.4.1 the report lists 26 items under the heading “Qualifications, Knowledge & Technical Skills”. Without analysing whether any of these have real foundation, I note the most ridiculous of them as follows:
(i)
“Knowledge of business and management principles involved in strategic planning.” The evidence before me was that in 1996, working for a government forestry department in the Philippines, she attended one or more one-day strategic planning workshops which was for a “US funded program”. There is no other evidence of her involvement in strategic planning let alone knowing business and management principles of such.
(ii)
“Food handling and food hygiene”. This seems based on her having worked part-time for a chocolate factory in November 1999 to January 2000. Otherwise it may be derived from the fact that she makes her youngest child’s lunch for school and does some of the cooking for her family.
(iii)
“Food production: knowledge of techniques and equipment for planting, growing, and harvesting food products (both plant and animals) for consumption, including storage/handling techniques”. This seems based on her having, before her injury, cultivated a vegetable garden and enjoyed using its produce in cooking for her family.
(iv)
“Judgment and decision making: considering the relative costs and benefits of potential actions to choose the most appropriate one”. There is no evidence of her being faced with considering relative costs involved in decision making apart from the fact that the family is in great stress due to financial hardship as she has not being in receipt of any benefits since September 2007, and her husband was subsequently retrenched, and then only able to obtain part-time work.
(v)
“Production and processing: knowledge of raw materials, production processes, quality control, costs, and other techniques for maximising the effective manufacture and distribution of goods”. This seems to assume that she was on the Board of Directors of the defendant rather than working on its production line making airbags and, later, seatbelts.
71 The list in paragraph 3.4.2 of personal attributes and competencies includes “planning and organising (work management); strategic planning (long range
planning); critical information seeking; strategic thinking; and political thinking”
and more than a dozen other attributes where there is no specific link with the
plaintiff’s prior work experience.72 Finally, her locale is described as if in an investment brochure. She lives in Craigieburn in the City of Hume, which is described as “Victoria’s gateway city to the world via Melbourne Airport” and which “also boasts its own inland port
– the multi-modal freight terminal located in the Austrack Business Park at
Somerton”.73 I note that in paragraph 4.3.1 the report does recognise that there are some barriers to her seeking employment, including her lack of experience in the Australian financial environment, university qualifications from The Philippines not readily recognised in Australia, and being 10 years out of an office environment, as well as her own perception of injury and her lack of confidence in obtaining work in a non-labouring environment. These barriers may be why with the glowing prospects suggested for her, the job recommendations for her are only three – debt collector, accounts clerk and bookkeeper.
74 Asked about the first, the plaintiff said she knew about a debt collector’s job as her daughter had done such work when aged 20 on a casual basis. She believed it would be too stressful for her and she would not be able to do it.
75 I find the two vocational assessments so extreme as not to be particularly helpful in this case. From the balance of the evidence I am satisfied that the plaintiff is permanently unfit to engage in work of the nature of all that she has ever done in Australia, and that this is due primarily to her spinal injury as well as possible right shoulder and right carpal tunnel conditions. I note that notwithstanding that she worked on with the defendant until able to apply for redundancy in 2007, buy 2005 the unlikelihood of her being able to keep going at her production line work was discussed with Mr Mavroudis.
76 As to her ability to do office-based accounts-type work, I accept that she has always wanted to do such work. However, if she was unable to obtain any such work when she first arrived in Australia, despite then recent extensive experience in it, I consider that she is highly unlikely to be able to obtain it now, because not only would she require an employer sympathetic to accommodating her need to not sit or stand for prolonged periods, but her qualifications from the Philippines are unlikely to be recognized, and her experience is wholly out of date. Book-keeping and retrieval methods have changed so much with computerization in Australia over the last 12 years, I am satisfied that her previous experience in the Philippines would be greatly outdated. She admits to being able to use the internet, finding information about orchids, but has no apparent experience in using computer accounting systems since doing an MYOB -9 course in 1999.
77 I am satisfied that she is not physically fit for full-time office work if it requires prolonged periods at a computer or using telephone headsets in a call centre, and given her psychological vulnerability she is unsuited for stressful work such as confronting people about their debts. I am satisfied that she is not fit for the jobs distilled as suitable for her by CoWork.
78 I am satisfied that Mrs Estipona has been highly motivated to work all of her adult life, and her history both before and after injury confirms that. She has undertaken all rehabilitation programs recommended – at Cedar Court and North Eastern Rehabilitation Centre. CoWork provided no assistance with job applications. I do not find any unreasonable failure to undertake retraining or rehabilitation.
79 I am satisfied that Mrs Estipona is currently totally unfit for suitable employment, and that her spinal injury continues to be a significant material cause of that incapacity. I am further satisfied that if she were to obtain some employment in the future it is very unlikely to be more than casual and part- time. For these reasons I am satisfied that she satisfied the definition of serious injury as to loss of earning capacity.
Psychological Condition
Medical Opinion
80 Dr Pahsivinidis perceived signs of depression in the plaintiff soon after first attendance, and referred her for counselling to Mr Andrew Mavroudis, psychologist, who treated the plaintiff between April 2003 and November 2006 for management of her reaction to her work-related lower back injury[18]. When she first presented she was shy but co-operative, was exhibiting pain behaviour, but maintained good eye contact. Her mood was lowered, she appeared anxious and fatigued, non-assertive, compliant and passive, with low self-esteem, but was not delusional or suffering from hallucinations. She described her physical symptoms and that she was undergoing treatment from a chiropractor, taking Panadeine Forte for pain and had been told at Cedar Court Rehabilitation that there was nothing wrong with her. She could not get comfortable in order to sleep properly and was always feeling tired.
[18] Exhibit L
81 He administered self-reporting tests which he regarded as showing her depression scale as being within the average range for a pain patient, as was her anxiety scale score. He diagnosed her as suffering from an adjustment disorder with mixed anxiety/depression and described the aim of her psychological treatment as being to help her learn to relax, cope more effectively with her pain, improve sleep patterns, deal with feelings of guilt, learn to be more assertive, and negotiate return to work duties with her employer. He considered she had been showing significant improvement up to August 2003, but then required time off work when she could hardly walk and was apparently in severe pain. He described the course of return to work and how she was received and regarded at work. He described her in late 2005 as being considered for a retraining grant if made redundant, and that in treatment they had progressively begun to explore other suitable options for career change and study, as it was clear that she was not going to be able to continue working in a factory for much longer. She was hopeful of receiving support in order to take advantage of such an opportunity of obtaining more sedentary-type work. However, up until the time he last saw her there was no progress on her being offered such a grant.
82 His treatment was terminated by the WorkCover insurer. At that stage it was his opinion that she was suffering from a dysthymic disorder, her prognosis was poor, and she was at risk for a major depressive episode. He regarded any chance of retraining at that stage as quickly dissipating. He thought the severity and chronicity of her problems which appeared to have remained largely unresolved had taken their toll on her and she was no longer able to cope effectively and there was a possibility that she would end up having a major depressive episode.
83 Carole Steger, clinical psychologist, treated the plaintiff between November 2007 and June 2010, having 33 clinical contacts with her over that period of two and a half years.[19] Mrs Estipona was referred to Ms Steger through Dr Terrence Lim, consultant in rehabilitation and pain medicine, to provide some psychological intervention and psycho-education on pain sensitisation as part of her chronic pain rehabilitation program at North Eastern Rehabilitation Centre (NERC). She thought that Mrs Estipona, having been accustomed to a busy, structured lifestyle pre-injury, had felt overwhelmed by the demands of living with pain and disability and that she was frustrated by the severity and ongoing nature of her pain problems, fearful of more damage and felt both depressed and demoralised about her continuing inability to achieve the goals she considered basic to enjoying life and family.
[19] Exhibit O
84 Over the course of treatment with Ms Steger, behaviourally Mrs Estipona progressed from doing very little to resuming some of her pre-injury tasks, with family support. Her diagnosis was that the plaintiff’s quality of life had been seriously compromised by depressive symptomatology and continuing pain-coping deficits in the context of occupational loss and straitened financial circumstances, culminating in the development of a chronic pain disorder associated with both psychological factors and general medical condition. She thought the plaintiff met the criteria for a Chronic Adjustment Disorder with mixed anxiety and depressed mood. The aim of treatment was to improve coping ability and difficulties. However, anti-depressant medication proved more successful in lifting her mood, although the changes could not be maintained consistently.
85 Ms Steger’s opinion was that the plaintiff did not demonstrate the emotional resilience she needed to manage her pain successfully by self-treatment. She recommended continued professional counselling support. As to fitness for employment, she considered that the physical capacities post-injury should be primarily considered, and that although the plaintiff had stated on numerous occasions that she wanted to be retrained such as in aged care nursing or pathology and sterilisation processes, and briefly considered a small family coffee shop business, she continued to have major pain-coping problems and there was relatively poor prognostic indication for successful reintegration back into the workforce.
86 Professor George Mendelson, consultant psychiatrist, examined the plaintiff for the defendant in December 2007 and September 2010[20]. On initial examination he noted reports of her suffering a low back disc injury, and shoulder and hand pain. His opinion was that she was not mentally ill. He accepted that she has emotional symptoms of frustration, feeling miserable and useless, and emotionally distressed by her family’s financial strains, which he considered were an understandable psychological reaction to her physical complaints and her current situation, but do not represent a diagnosable mental illness. He therefore felt she had no loss of work capacity due to any mental disorder or psychiatric impairment.
[20] Exhibit 5
87 On further assessment in September 2010, he noted that she had been attending Dr Bethany Whitehouse, psychiatrist, and was taking Cymbalta. It remained his opinion that the plaintiff was not mentally ill, and had no loss of work capacity due to any specific diagnosable mental disorder or psychiatric impairment. He noted that Dr Whitehouse, in April 2008, had diagnosed clinical depression, but concluded that the plaintiff’s symptoms must have resolved over the intervening two and a half years with her treatment.[21]
[21] Exhibit 5
88 Dr Bethany Whitehouse[22] provided reports in June 2008 and August 2010. She has treated the plaintiff as consultation liaison psychiatrist in the North Eastern Rehabilitation Service (NERC), having first seen her in April 2008. The plaintiff described increasing depression from the onset of her pain, which deepened in 2003 when her father became ill and she was unable to send money for his treatments. She described depressive symptoms and some of anxiety. On presentation she was kempt and co-operative, tearful throughout interview (until close to the end), of depressed affect but her speech was fluent and there was no formal thought disorder. Prominent features were feeling guilty, worthless, and hopeless themes, and she showed ongoing lack of comprehension of her ongoing pain disorder.
[22] Exhibit M
89 Dr Whitehouse considered that she presented with major depression in the context of chronic pain, loss of occupation and financial strain and that the pain and loss of work were major contributors to that depression. However, there were other factors, including her father’s death. She commenced on anti-depressant medication which improved symptoms significantly but was changed due to causing ongoing headaches. She was also at that time seeing a psychologist at NERC, Carmen Steiger. In mid-2008 Dr Whitehouse considered her prognosis regarding depression was positive and even if ongoing medication was required it should provide ongoing and possibly increasing control of symptoms. She did not consider symptoms at that level would interfere with suitable work, but her work capacity was dependent on the plaintiff’s physical condition.
90 In August 2010, Dr Whitehouse’s diagnosis was of major depression of moderate severity in partial remission, and Chronic Pain Disorder with both medical factors and psychological factors, where medical factors are the diagnosis of central sensitisation, and the psychological factors are depression and anxiety. She considered that the pain and loss of work were the major contributors to the plaintiff’s depression. She thought it was also contributed to by other life stressors, but noted there was no history of depression or anxiety before her work injury, and on the contrary high functioning resilience in raising children, working and immigrating without problems prior to the chronic pain developing. She noted that despite essentially completing the rehabilitation program and increasing her competence in dealing with pain, as well as increasing her activity level, she continued to experience significant pain and exacerbations accompanied by significant worsening of mood. Prescription of anti-depressant had continued, with moderately good effect on her mood and anxiety overall. Some aspects of pain management treatment were carried out by the psychologist, Carmen Steiger, but she had ceased psychological treatment with Ms Steiger in mid- 2010.
91 Dr Whitehouse’s opinion was that the plaintiff would continue to experience depressive symptoms during pain exacerbations into the future, and regarded the control of depressive symptoms as good as could be given that pain symptoms were also likely to be ongoing. She considered that whilst depressed the plaintiff would be less able to function at any work, but her symptoms at their present level would not interfere with suitable work. She regarded the plaintiff’s physical limitations for work and increased pain if she worked as likely to have secondary effect in increasing her depressive symptoms.
92 Dr David Weismann, consultant psychiatrist, provided a medico-legal assessment[23] in March 2010. He assessed her affect as mildly depressed and mildly restricted in range, her thought stream was normal, and the content of her thinking revealed mild to moderate mixed reactive depressive symptoms, themes and features, with some pain focus and preoccupation and she referred to feelings of guilt and being a burden. She was not formally tested for cognitive functioning. She complained of forgetfulness, but he assessed her cognition to be intact during the interview. Her insight and judgment were characterised by lowered self-esteem and confidence with some elevated health concerns.
[23] Exhibit Q
93 He diagnosed her as suffering from a Chronic Major Depressive Disorder of mild to moderate intensity or severity, and symptoms and features of a Chronic Pain Disorder. He considered her psychiatric symptoms and conditions as stabilised. On purely psychiatric grounds she probably had a partial but not a total incapacity for suitable duties, and was not totally incapacitated for all work. He recommended she continue to see her general practitioner for supportive care, her pain management physician, her clinical psychologist on a monthly basis, and that she continue to take Cymbalta anti- depressant (60mg daily). Her considered her psychiatric prognosis was somewhat uncertain and guarded but fair overall.
Has the plaintiff suffered a serious injury under part (c) of the definition?
94 Professor Mendelson found no diagnosable psychological condition, but he is alone in that regard. If he is correct, his opinion would strengthen the plaintiff’s case under part(a) of the definition by excluding any psychological influence on her perception of pain or coping skills.
95 All other expert opinion as to her mental health – two treating psychologists, and a treating psychiatrist, all of whom have seen her on an ongoing basis and in the context of pain management and rehabilitation programs, as well as the medico-legal opinion of Dr Weismann diagnose her as suffering from clinical depression. The psychologists categorised her condition as an Adjustment Disorder with mixed anxiety and depression, but I note that when Mr Mavroudis last saw her in 2005 he thought it could develop into major depressive episodes. Dr Whitehouse and Dr Weissman, both psychiatrists, diagnose major depression, and a pain disorder of both physical and psychological origin.
96 I am satisfied that as a result of her physical injuries the plaintiff developed symptoms of depression and anxiety which constituted an adjustment disorder at first, but ultimately developed into at least periods of major depression.
97 In order to satisfy the test for serious injury under part (c), the plaintiff bears the burden of establishing that consequences from her psychological condition alone are to be fairly described as “severe”, being something more than serious.
98 I am satisfied that Mrs Estipona feels frustration, inadequacy, guilt at the financial consequences to her family of her being unable to earn income, and uselessness in being unable to fulfil her full role in the family as she had always previously done, and that these consequences are very significant for her. However, I am satisfied that it is the chronic pain which is fundamental to her level of overall disability, and that that is primarily caused by the underlying physical condition, even if enhanced by the pain disorder diagnosed by Drs Whitehouse and Weismann. Her psychological condition is regarded as stabilized and moderately improved with anti-depressant medication. I am not satisfied that she is suffering significant cognitive impairment, such as to memory or concentration, and her psychotropic medication is moderate. I do not doubt that at times she feels hopeless about her situation, but overall I am not satisfied that she can be said to be suffering “severe” consequences from her depressive illness when compared with other cases of such conditions.
99 Although stabilised on anti-depressant medication, namely, Cymbalta (taken daily), and apart from Dr Mendelson, the general opinion is that from a psychological point of view she is not totally incapacitated for work and it is the physical impairments that are the more significant in limiting her work capacity, although her adaptability is affected by her psychological condition, in particular, lack of confidence. This evidence does not enable me to be satisfied that she suffers a permanent loss of earning capacity of at least 40% from her psychiatric condition alone.
Conclusion
100 I am satisfied that the plaintiff suffered injury to her lower spine during the course of her employment with the defendant from approximately December 2002, and that injury satisfies the test for serious injury, both as to pain and suffering and as to loss of earning capacity. I am satisfied that she also suffered psychological injury in the form of clinical depression and pain disorder, but I am not satisfied that those conditions satisfy the test for serious injury, either as to pain and suffering or as to loss of earning capacity.
101 The plaintiff will be granted leave to bring proceedings for both pain and suffering and pecuniary loss damages as a result of her lumbar spine injury.
SCHEDULE OF EXHIBITS
| Number and | Short Description of Exhibit | Tendered by |
Identifying Mark
on Exhibit
A Copies of Plaintiff’s affidavits made 20 July 2009 Plaintiff and 22 October 2010 B Medical Panel’s certificate of opinion dated 11 May Plaintiff 2007 C Medical file on plaintiff of Lorne Street Clinic Plaintiff D Affidavit of Albert Estipona sworn 7 October 2010 Plaintiff E Report of Dr Stephen Lewinsky dated 9 Oct 2007 Plaintiff F Report of Dr J Lay 8 Oct 2007 Plaintiff G Report of Mr Roderick Cunningham dated 30 Jan Plaintiff 2008 H Reports of Dr Pauline Pahtsivanidis 8 Sep 2008 Plaintiff and 23 Oct 2010 J Reports of Mr P Wilde dated 30 Oct 2007 and 12 Plaintiff Oct 2010 K Report of Graham Symington to Dr Pahtsivanidis Plaintiff dated 5 October L Report of Dr Mavroudis 23 Feb 2009 Plaintiff M Reports of Dr Bethany Whitehouse dated 21 June Plaintiff 2008 and 19 Aug 2010 N Reports of Mr Stanley Schofield dated 17 Feb Plaintiff 2010 and 27 Aug 2010 O Report of Carmen Steger dated 6 Sep 2010 Plaintiff P Report of Dr T Lim dated 19 July 2010 Plaintiff Q Report of Dr Weissman 15 March 2010 Plaintiff R Report of Margaret Leitch of Evidex Pty Ltd 4 June Plaintiff 2010 S Radiological reports dated 5 Feb 2003, 11 Feb Plaintiff 2003, 14 March 2003, 2 x 8 Oct 2003, 4 Feb 2005, 24 Aug 2005, 4 Sep 2006, 14 March 2007, 28 Sep 2007, 3 Dec 2007, 26 June 2008, 11 Feb 2010, 12 Aug 2010 and 7 June 2010
T Document of extracted income information in Plaintiff relation to the Plaintiff
| Number and | Short Description of Exhibit | Tendered by |
Identifying Mark
on Exhibit
1 Reports of Dr Rowe 5 May 2003, 17 July 2003, 9 Defence Oct 2003 2 Reports of Dr Douglas dated 17 July 2003, 1 April Defence 2004, 6 Aug 2004 3 Reports of Dr Lange dated 4 March 2004 and 13 Defence Sep 2004 4 Reports of Dr Barton dated 11 Jan 2006 and 13 Defence Sep 2006 and 16 Jan 2008 5 Reports of Assoc Prof Mendelson dated 28 Dec Defence 2007 and 15 Sep 2010 6 Reports of Dr Fraser 18 Sep 2009, 6 May 2010 Defence and 3 Aug 2010 7 Report of CoWork dated 21 April 2010 Defence
0
0
0