Fox v Tarrenlea Ridge Pty Ltd
[2010] VCC 877
•2 July 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-01479
| NICOLE TRESNA FOX | Plaintiff |
| v | |
| TARRENLEA RIDGE PTY LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 and 28 June 2010 |
| DATE OF JUDGMENT: | 2 July 2010 |
| CASE MAY BE CITED AS: | Fox v Tarrenlea Ridge Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0877 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – S.134AB Accident Compensation Act 1985 – claim in relation to pain and suffering only – injury to thoracic spine – whether the consequences achieve the “very considerable” level.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R P Gorton QC with | Arnold Thomas & Becker Pty Ltd |
| Mr J P Brett | ||
| For the Defendant | Mr R H Smith SC with | Thomson Playford Cutlers |
| Mr C E Hangay | ||
| HIS HONOUR: |
Preliminary
1 The plaintiff worked for the defendant, which conducted a Pizza Hut restaurant at premises at Hawthorn, over the period from 1994 until approximately late 2001. In approximately April 2001, she carried out duties, including lifting heavy batches of dough and suffered pain in her mid or thoracic spine as a result. She remained at work, and subsequently transferred to another Pizza Hut premises, undertaking lighter duties. Eventually she left the defendant’s employment although has worked in full- time office duties since.
2 As a result of the injury to her thoracic spine, the plaintiff claims a reduction in a range of recreational, domestic and social activities, together with ongoing pain and restriction in the region.
3 This is an application for leave to bring common law proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the defendant, and in particular in April 2001.
4 Mr Gorton, on behalf of the plaintiff, identified the body function said to be lost or impaired as the thoracic spine.
5 This application is thus brought under sub-s.(a) of the definition “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of pain and suffering only.
6 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of body function.
7 The plaintiff was the only witness to be called to give evidence and be cross- examined. In addition, her affidavits, medical reports, radiological reports and extracts from clinical notes were tendered into evidence. I have read all the tendered material.
Relevant Background
8 The plaintiff was born in 1981. She is currently twenty-eight years of age. She completed her schooling to Year 12. In 1994, at age thirteen, she commenced part-time employment with the defendant who ran a franchise of pizza shop restaurants in a number of suburbs around Melbourne. The work, at that time, was part-time and holiday employment. Upon leaving school in approximately 1999, she went to work full-time for the defendant at a number of locations, and in April 2001, was employed as assistant manager at the Hawthorn premises. The franchise was a business owned and operated by her grandfather. The work, particularly at the Hawthorn store, required her to mix and then lift 10 kilogram lots of dough onto a table. This lift was carried out between eight and eleven times each morning.
9 At approximately thirteen years of age, the plaintiff felt pain in her lower back and was taken to a specialist at the Royal Children’s Hospital. A scoliosis of the spine was diagnosed, and in a relatively short period of time the pain settled. In 1999 and 2001, the plaintiff attended a Mr Albert Lau, a practitioner in Chinese manipulation and massage, although there are no details available of that treatment.[1] Apart from an earlier hepatitis C infection, the plaintiff was otherwise well as at April 2001.
[1] See report of Mr Lau – Plaintiff’s Court Book (“PCB”) A.
The Incident and its Consequences
10 On a day in April 2001, the plaintiff was performing the manual handling of dough, and in the course of lifting dough out of a bowl, felt a cracking sensation in the middle part of her back and significant pain, shooting into her neck and scapular region. She remained working, although did not continue to handle the dough. Approximately ten days later, she attended the Betta Health Medical Centre and saw a physiotherapist. She complained of a painful mid-thoracic spine over the previous ten days. Treatment was by ultrasound to the thoracic spine[2]. The plaintiff returned to the clinic for treatment on 23 April 2001 and complained: “The back was very painful last night especially[3]”. On this occasion, she saw a doctor and a physiotherapist, anti-inflammatory medication was prescribed, exercises were recommended, and ultrasound treatment given. The plaintiff again attended the Clinic in October 2001 for an unrelated matter.
[2] PCB 48,52
[3] PCB 48
11 The next treatment was in December 2001 at Box Hill Physiotherapy[4] where it was noted:
“Went to Chinese back manipulator one day ago – back felt good, but neck very sore and stiff. Past history – had sore neck/low-back pain/shoulders for some period – have scoliosis.”
[4] PCB 76
12 Treatment on that occasion was for neck pain.
13 There would then appear to be a significant gap of any treatment until the plaintiff attended Dr Kyriakopoulos, chiropractor, in January 2003.[5] A history was obtained that the plaintiff had suffered “low-back pain” while lifting dough working in a Pizza Hut store. The plaintiff received chiropractic treatment from Dr Kyriakopoulos on nine occasions in 2003, once in 2004 and twice in 2005. In a subsequent history there is reference to the onset of pain in “the middle of her back” at some time in 2001. Treatment appears to have been to a number of areas to the back, including to areas around the thoracic spine[6].
[5] PCB 39-40
[6] PCB 40
14 In April 2004, the plaintiff attended Dr Maria Chan, general practitioner.[7] It would appear the plaintiff was treated by Dr Chan over the period from 2004 until July 2009. On approximately seven occasions out of fourteen attendances, there appears to be reference to thoracic spinal pain. An x-ray was ordered in December 2004[8] which indicated thoracic and lumbar scoliosis.
[7] PCB 23
[8] PCB 41
15 In February 2008, Dr Chan referred the plaintiff for orthopaedic assessment at the Box Hill Hospital. She was seen by Mr Michael Armstrong, orthopaedic specialist. There is no report from this practitioner. Mr Armstrong ordered an MRI examination of the cervical and thoracic region and the report of August 2008[9] concluded:
“Examination is within normal limits, in particular there were no features of degenerative change, inflammatory discitis or encroachment upon the central canal at any level.”
[9] PCB 43
16 Apart from referral from x-ray and to the Box Hill Hospital, Dr Chan appears to have provided no treatment, and in particular no medication. Mr Armstrong is the only specialist to whom the plaintiff has been referred.
17 In February 2005, the plaintiff returned for treatment at Box Hill Physiotherapy, and was seen regularly in 2005 and 2006 by Mr Paul Ness.[10] Details of the attendances by the plaintiff at that Clinic are set forth in Exhibit B. Although there were relatively few attendances in 2008, 2009 and this year, the plaintiff stated that she did not have sufficient funds, despite working full-time, to be able to afford treatment. In fact she undertook treatment in 2005 as a result of being awarded $1,500 at the outcome of a conciliation conference in April 2005.[11] The treatment at Box Hill Physiotherapy included massage, mobilisation, manipulation and strengthening exercises. The history obtained, and treatment provided was in relation to the thoracic spine. Mr Ness’ report of October 2009,[12] noted:
“On looking at her treatment notes from the last twenty months it looks like she occasionally has a flare-up, but there are lengthy periods between treatments also. These flare-ups are reported as being set off by computer work, sitting still for long periods or having a ‘big night out’. I feel the frequency and severity of these flare-ups could be reduced with further treatment and the adherence to a good gym program as mentioned previously. … .”
[10] PCB 34-38
[11] See Exhibit C
[12] PCB 38
18 In February 2005, the plaintiff returned for treatment to the Betta Health Medical Centre and Dr John Lanyon. The history then provided was as follows:
“She then attended today on 23rd February 2005 and stated that she had back pain while she was working with her grandfather in the Pizza Hut back in 2001. She stated she didn’t put in a WorkCover claim because of her relationship with her grandfather, and she was moved within the chain to a different place, because of her back pain and continued on with chronic back pain, until her work with Pizza Hut ended in 2003. Since then, she has had constant pain in the back and has attended for a lot of treatment including physiotherapy, chiropractic treatment, manipulative therapy and osteopathy, but her pain has got worse recently. … It stops her from carrying out constant sedentary work. She can’t sit still for more than ten minutes; she has to rotate the body; lifting heavy weights gives her pain. She stated that she worked in Pizza Hut for many years from 1996 onwards and that she felt nowadays she was fit for work but not involving heavy lifting. … .”
19 In October 2006, Dr Lanyon referred the plaintiff for x-ray examination to her thoracic spine which showed scoliosis but no other abnormality.[13] It would appear Dr Lanyon ceased treating the plaintiff in March 2007, and in the period from February 2005 to March 2007, saw the plaintiff on only three occasions, the final occasion of 5 March 2007 being a request for a medical report.
[13] PCB 51
20 The plaintiff did not lodge a Claim for Compensation until November 2004.[14] She said in evidence that she was reluctant to do so, because her grandfather was the owner of the business. Further, at the outset, she expected the condition would resolve and the pain would go away. In cross-examination, the plaintiff confirmed that neither Dr Chan nor Dr Lanyon had ever prescribed medication for her back pain.[15] She stated[16] that she had an aversion to pain- relieving medication, but had taken anti-inflammatories and occasionally Panadeine Forte as provided by her mother. The only other medication was ‘over the counter’ Panadol.
[14] PCB 107-109
[15] T 37
[16] T 38
21 On one occasion, the plaintiff obtained osteopathic treatment from Dr Anna Downey of Richmond.
22 In the last two or three years, the plaintiff has been treated by doctors at the Bulleen Plaza Clinic at Bulleen. She had previously first attended this Clinic in 2002 or so. There is no report from any doctor of this Clinic.
23 In terms of the plaintiff’s employment, as stated, she had little if any time off work after the incident but was transferred to another Pizza Hut store where she was not required to carry out the heavier duties. She eventually ceased work in December 2001[17] which was in part related to her thoracic back problem, but also as her boyfriend at the time was working dayshift, while she worked nightshift.
[17] Claim Form – PCB 107
24 From December 2001 to the present, the plaintiff has generally remained in full-time employment, principally as a receptionist and undertaking office duties. On occasions she has worked as a waitress and bar attendant. At the current time, she works as a receptionist with a home loan company, working 8.30 am to 5.30 pm. The plaintiff had left jobs from time to time, sometimes she claims because of her back, but also related to a range of other reasons, including personality clashes.[18] Generally, her employment has been full time and continuous.
[18] T 52
25 At the present time her treatment regime is unclear. She claims that she takes anti-inflammatory medication, Valium and Temazepan to help with sleep, but there is no medical material to support this, nor to indicate by whom it is prescribed. Her current treatment with the Bulleen Plaza Clinic is unclear. Aside from one physiotherapy treatment in January 2010, there is nothing to indicate current physiotherapy treatment. The plaintiff claims that time spent at a computer terminal aggravates her back pain. She states that her sleep is affected and that her social and recreational activities are restricted. The plaintiff accepted that she occasionally has a “big night out” with friends. She states driving causes discomfort. The pain from her mid-back spreads to the shoulder region and neck. She claims to occasionally suffer from headaches. In her present job, she is able to get up and move around to avoid pain and stiffness. She states that she would undertake more physiotherapy treatment, but that WorkCover refused to pay for the same. She says she cannot afford physiotherapy, despite working full-time.
Medical Opinions
26 In his report of 8 March 2005, the general practitioner, Dr Lanyon, diagnosed the plaintiff as having developed thoracic back pain in about April 2001 associated with her work. He thought that the pain was “presumably” due to her employment. He thought the plaintiff was fit for normal work, but not heavy lifting.
27 Mr Paul Ness, in his report of 15 February 2005[19] considered the plaintiff ought not return to work which involved repetitive lifting or bending. He said that with appropriate treatment and a gymnasium program, the plaintiff could return to an almost normal life but would suffer some residual aches and pains.
[19] PCB 35
28 Dr Chan, in her report of approximately March 2007[20] considered the plaintiff not able to do heavy lifting over 3 kilograms but was fit for light duty work. She thought the thoracic pain was related to her work injury in 2001.
[20] PCB 24
29 Of significance is the opinion of Mr Kevin King, orthopaedic specialist, of April 2010.[21] He obtained a comprehensive history, including that the plaintiff had suffered thoracic back pain which he described as “persisting, nagging mid and lower thoracic back pain” from 2001 to the present time. On examination, he noted only mild limitation of movement in the thoracolumbar area. He concluded,[22] that as a result of her work duties in March or April 2001, the plaintiff had suffered an injury to mid and lower thoracic lumbar discs and associated ligamentous structures which had an organic basis. He described the level of impairment as mild to moderate with an approximate 20 per cent loss of function of the thoraco-lumbar spine. He said the plaintiff was permanently unfit to return to unrestricted duties but ought be able to continue office duties. He said that the pre-existing mild scoliotic curve would have made the plaintiff a little more vulnerable to injury but was not, of itself, causative of symptoms.
[21] PCB 25-31
[22] PCB 29
30 On behalf of the defendant, the plaintiff was examined by Dr Leon Fail, psychiatrist, in December 2004. Given this application relates to organic injury, the opinion is of little assistance.
31 The plaintiff was examined by Dr David Ho, an occupational health consultant, in December 2004.[23] He obtained a history that the plaintiff had suffered an injury to her lower back in April 2001. Given this history, much of his opinion is centred around the lower back, rather than the thoracic spine, although he noted current complaints as being to the middle back. It is not clear from the report whether the plaintiff gave an incorrect history, or Dr Ho misinterpreted what was said to him. In any event, because of this incorrect history, his opinion is of little assistance.
[23] Defendant’s Court Book (“DCB”) 27-30
32 Finally, the plaintiff was examined by Mr Michael Shannon, orthopaedic specialist, in May 2010.[24] He also obtained an extensive history. In particular, the plaintiff complained of a “knife like” pain in the mid-thoracic region which she declared had become progressively worse over the years. He noted that the plaintiff took no medication and had modest treatment. He stated the plaintiff had a very flexible thoraco-lumbar spine with a better than average range of movement. Examination elicited minor discomfort at the extremes of thoracic rotation with no spasm. He noted radiological investigations were normal. Like Mr King, he did not think the congenital scoliosis played any significant role, other than imposing slightly increased stressors on the relevant joints of the spine. He considered the plaintiff had suffered a soft tissue strain to the thoracic spine but that it had substantially resolved. He stated:
“Therefore, in the presence of normal x-rays and MRI scans and in the absence of any significant abnormal physical signs, I am unable to establish that she has any ongoing physical injury to her spine.”[25]
[24] DCB 31-37
[25] DCB 35
33 He considered the plaintiff had a work capacity but ought to avoid work involving a lot of bending or heavy lifting.
Submissions on behalf of the Plaintiff
34 Mr Gorton confirmed that the focus of any inquiry under an application of this nature was the consequences of injury, rather than the injury itself. He submitted that in accordance with the report of Mr King, the plaintiff had suffered an injury to the lumbar discs and associated ligamentous structures of the thoracic spine. Once injury is established, an examination is necessary of the consequences which are said to flow.
35 He submitted that the plaintiff was an honest and straightforward witness, and her testimony in relation to the consequences of injury, particularly in her affidavit, ought be accepted. He submitted there was no significant challenge to this by the defendant.
36 In particular, he noted the plaintiff had suffered an injury to her thoracic spine in April 2001 and that since that time the pain had been ongoing, fluctuating with exacerbations. It had required considerable treatment over the years, particularly physiotherapy and chiropractic treatment. According to the plaintiff’s affidavit,[26] there were significant restrictions in a range of activities, including relating to her work, where the plaintiff was required to move regularly to relieve stiffness in her middle back. The plaintiff swore her sleep was affected, she was unable to drive for significant periods of time and any significant physical activity troubled her. She claimed to spend time over the weekend resting after work. In terms of treatment, while Mr Gorton acknowledged there was little in the way of medication, the plaintiff’s physiotherapy treatment was curtailed because she did not have the funds. As a result of the injury, the plaintiff had been forced to undertake lighter work and that any manual work was now beyond her.
[26] PCB 16
37 In determining which opinion to accept as between Mr Kevin King and Mr Michael Shannon, he submitted Mr King’s opinion was to be preferred. Aside from having obtained a comprehensive history, Mr King relied upon and accepted the complaints of pain made by the plaintiff over the period from 2001 to 2010. Mr Shannon on the other hand did not appear to accept those complaints, as he concluded that in all probability the plaintiff had suffered a strain in 2001 which had resolved.
38 Mr Gorton concluded that much hinged upon the credibility of the plaintiff and whether I accepted the validity of her complaints. He stated the plaintiff was a young woman, on the bulk of the medical evidence her condition was permanent, and she faced ongoing pain into the future which would considerably restrict a range of domestic and social activities. Thus, said Mr Gorton, the plaintiff met the statutory test.
Conclusions
39 I accept the plaintiff suffered an injury to her thoracic spine in April 2001 in the course of her employment duties with the defendant. The real issue in this application is whether the consequences of that injury reach the “very considerable” level required by the legislation.
40 The first matter to consider is what is disclosed by radiology in relation to the plaintiff’s spinal condition. Aside from congenital scoliosis, x-rays and the MRI scan disclosed no abnormality of any sort.
41 The next matter is the treatment that the plaintiff has had over the years, and particularly is undergoing at the present time. It is clear that there are considerable gaps in treatment either by a general practitioner, or an allied health professional, particularly in the early years. The plaintiff did receive considerable physiotherapy, but that was not until 2005 and 2006. She receives very little at the present time. The plaintiff has had chiropractic treatment, but that was principally in 2003, and some treatment in 2004 and 2005. The plaintiff has had very few attendances upon her general practitioners. She has had little if anything in the way of medication over the years, and takes no medication at the present time, save for ‘over the counter’ Panadol. The plaintiff has had no specialist treatment, save for a referral to Mr Michael Armstrong at the Box Hill Hospital in 2008. Given there is no report from that practitioner, I infer that, had he provided an opinion, it would not have favoured the plaintiff. Further, I may more easily accept those opinions proffered by the defendant.
42 The plaintiff has been treated by her current general practitioners at the Bulleen Plaza Clinic over the past two or three years. There is no report from those doctors. Again, I infer that were an opinion to be provided, it would not assist the plaintiff.
43 The plaintiff’s complaints of ongoing significant thoracic pain are not consistent with the lack of treatment over the years. On a number of occasions she attended her general practitioners without complaint of any mid-thoracic problem. A comprehensive description of the injury was not provided to Dr Lanyon until 2005. Absent the complaint of pain the plaintiff makes, there is little in the way of restriction of domestic, recreational and social activities made by the plaintiff in her affidavits or evidence. In fact, she accepted that she goes out reasonably regularly with friends. The plaintiff left employment with the defendant in December 2001, but that was not related solely to her back problems. She currently works in full-time employment, and there is no evidence that she has had any significant time away from work, either while working for Pizza Hut, or in the office and like jobs she has had over the years since 2001.
44 Generally, I found the plaintiff gave a reasonable account of her situation in the course of evidence and cross-examination. There were no major credit issues put to her. That does not mean, however, that a court must accept the full nature and extent of all of the complaints made. Regard must be had to the radiology, nature and extent of treatment and restriction upon domestic and social activities.
45 The two medical opinions of most significance in my view are those of Mr King and Mr Shannon. It is always difficult to discern between two expert opinions without having the practitioners give evidence and be cross-examined. I do not totally accept the opinion of Mr King. Much of his opinion is based upon acceptance of the plaintiff’s complaint of the “immediate onset of severe disabling lower thoracic back pain” at the time of the incident, and further upon his acceptance of the plaintiff’s history of “persisting, nagging mid to lower thoracic back pain to the present – over the last nine years”. This history is not consistent with the plaintiff having no treatment at the time of the incident for a period of ten days, and no time away from work. It is also, in my view, not consistent with the paucity of treatment over the years.
46 Nor do I completely accept the opinion of Mr Shannon. Although his examination was almost completely normal, he appeared not to accept the plaintiff as having suffered any significant pain over the period from 2001 to 2010.
47 In my view, the true situation is something between the two opinions. I accept the plaintiff suffered some form of strain to her thoracic spine in the incident. There is nothing to suggest involvement of any of the thoracic discs. I accept that has resulted in ongoing ache and pain exacerbated from time to time. However, the pain has not been such as to require much in the way of treatment, save for the physiotherapy and chiropractic treatment to which I have referred. The plaintiff has required no medication and save for a referral to an orthopaedic specialist on one occasion, no other specialist referral. The plaintiff’s claim that she has not been able to afford proper treatment over the years rings somewhat hollow given she has been in full-time employment through to the present time.
48 Even accepting the plaintiff has suffered some pain in her thoracic spine with exacerbations from time to time, in my view, the consequences complained of do not achieve the “very considerable” level as the legislation requires. The application thus fails.
49 I shall make consequent orders.
- - -
0
0
0