Foxford v VWA
[2016] VCC 1710
•18 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-05710
| MIRA FOXFORD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 & 19 October 2016 | |
DATE OF JUDGMENT: | 18 November 2016 | |
CASE MAY BE CITED AS: | Foxford v VWA | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1710 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Aggravation of lower back injury – pain and suffering – disentanglement – unrelated left knee injury – separation of consequences
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; RJ Gilbertson v Skorsis [2000] VSCA 51; Davies v Nilsen & TAC [2014] VSCA 278
Judgment: Application unsuccessful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC | Maurice Blackburn |
| with Mr N Dunstan | ||
| For the Defendant | Mr N Murdoch QC | Minter Ellison |
HER HONOUR:
Preliminary
1 The plaintiff had been employed as a secondary school teacher at MacKillop College, since 1976. The plaintiff claimed that on 8 August 2008, whilst preparing for the school’s celebration of the Feast Day of Mary MacKillop, she was standing on a concrete floor, lifting slabs of soft drinks onto a table, when she suffered an aggravation of a pre-existing lower back condition. (“August 2008 incident”)
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for the August 2008 incident. The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for pain and suffering only. The body function said to be impaired is the lumbar spine.
3 The plaintiff has the burden of proving, on the balance of probabilities, that she has suffered impairment of her lumbar spine as a result of the August 2008 incident, and that the impairment is both serious and permanent.[1] In determining if the plaintiff has suffered a serious impairment, it is impermissible to take into account the cumulative effect of her pre-existing injury and the aggravation.[2] Further, when there has been more than one accident or incident which is said to aggravate an existing injury, the aggravation resulting from each accident, must be considered separately to determine whether it satisfies the definition of ‘serious injury’.[3]
[1]Philippiadis v Transport Accident Commission [2016] VSCA 1 at [24]
[2]Ibid at [27]
[3]Ibid at [27]
4 Mr J Richards QC and Mr N Dunstan of counsel appeared for the plaintiff and Mr N Murdoch QC and Ms S De Guio of counsel appeared for the defendant.
5Only the plaintiff was called to give evidence and she was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my Judgment.
Relevant background
6 The plaintiff is 64 years of age and lives with her husband. She has one child from a previous marriage and two stepchildren. She also has one grandchild and two step grandchildren.
7 After completing secondary school, the plaintiff trained as a teacher at Mercy Teachers’ College and Melbourne University. Following her graduation, she taught at Annunciation Primary School in Brooklyn from 1972 until 1975. In 1976, she commenced her employment with the defendant as a secondary school teacher, where she continued on a full-time basis, until she retired at the end of 2015. The plaintiff taught Humanities, including English, French and Religious Education.
8 In May 1999, the plaintiff fell down some stairs at work, during the course of her employment, and suffered an injury to her left knee. Following this left knee injury, she required four surgical procedures – an arthroscopy in 2005, a left knee medial compartment replacement in February 2007, a surgical revision in May 2008, and a total knee replacement in July 2011.[4]
[4]Plaintiff’s Court Book (“PCB”) 41
9 As a consequence of the plaintiff’s left knee injury, she also developed problems with her right knee, for which she underwent a total knee replacement in April 2014. The plaintiff said she received a good result from this surgery.
10 Since that time, the plaintiff has had ongoing problems and pain in both her knees, in particular her left knee. She acknowledged the left knee problem was permanent, and that it restricted her in a range of activities. As a consequence, she required ongoing pain medication.
11 The plaintiff had also previously suffered from two brain aneurysms, for which she had surgery in November 1999, and was off work for six months. She had a further aneurysm in 2011, and was again absent from work for approximately three to four months.
Prior lower back complaints
12 The plaintiff first injured her lower back in a trampoline incident at Teachers’ College, when aged 21 years.[5] From that time, she would suffer niggling back pain, that came and went, but did not interfere with her life.[6]
[5]Transcript (“T”) 17, Line(s) (“L”) 25-31
[6]T17, L20-24
13 In 1998, the plaintiff moved to Bacchus Marsh. She thereafter attended the Elms Family Medical Centre when she needed medical treatment. The plaintiff predominantly saw general practitioner, Dr Woodrow Wu, but would, on occasions, consult other doctors at the clinic. The clinic’s records indicated that the plaintiff first complained of lower back pain on 13 September 2001, and that she suffered such pain around the time of her menstrual period.[7]
[7]Defendant’s Court Book (“DCB”) 79C
14 There are further attendances upon numerous doctors at the clinic regarding back pain, including an attendance on 19 November 2003, where it was recorded the plaintiff suffered “Chronic low back pain. Worse in the morning. Requesting physio.”[8]
[8]DCB 79G
15 On 17 February 2004, it was noted that the plaintiff had suffered lower back pain since undergoing a hysterectomy.[9]
[9]DCB 79G
16 On 26 April 2004, the plaintiff was referred by Dr Wu to rheumatologist, Dr Alex Stockman, in relation to pain and clicking in her left thumb and right little finger, as well as a “long history of low back pain.”
17 In a letter to Dr Wu on that day, Dr Stockman stated:
“The lower back pain has been worrying her for about 30 years after she hurt herself on a trampoline. The pain has gradually increased in intensity but there has been some improvement since she has been performing and (sic) exercise program and hydrotherapy.”[10]
[10]DCB 42
18 The plaintiff said she did not think that the back pain had been “worrying” her, but acknowledged that by the early part of that decade, she had back pain of increasing intensity, severity and frequency, that was more than the niggling pain she previously had.[11]
[11]T23, L7-31, T24, L1-3
19 At about that time, the plaintiff was taking Vioxx medication for her lower back pain which, her medical records indicate, she ceased taking in October 2004 due to a worldwide recall. Thereafter, the plaintiff was prescribed Mobic medication, which she then took in relation to her lower back and left knee pain. However, the plaintiff could not recall ever taking Vioxx, and could only recall being on Mobic for her lower back pain.
20 There are no attendances upon either her general practitioners or her physiotherapist in relation to lower back pain during 2005 and most of 2006.
21 On 17 November 2006, the plaintiff attended Dr Heinz Tilenius at the Elms Family Medical Centre with multiple complaints, including a sore back.[12]
[12]DCB 83
22 On 23 April 2007, the plaintiff attended orthopaedic surgeon, Mr Andrew Byrne, to obtain a second opinion regarding her left knee injury. During the course of her attendance with Mr Byrne, the plaintiff reported left knee pain which, at times, radiated into the toes, and was associated with numbness. The plaintiff also complained about back pain, such that Mr Byrne recommended a CT scan to assess the plaintiff’s lumbar spine and to exclude a disc lesion. [13]
[13]DCB 111
23 The CT scan, taken that same day, demonstrated disc narrowing at L3-4, with left posterolateral extension compromising the L4 nerve root and disc degeneration at L5-S1.[14]
[14]PCB 33
24 Mr Byrne then recommended a nerve root injection into the plaintiff’s lower back, which was performed in approximately May 2007. When the plaintiff subsequently attended Mr Byrne on 7 June 2007, he noted that she suffered “persistent back pain. The nerve root injection did not help greatly”.[15] The plaintiff accepted this history.[16]
[15]DCB 111
[16]T28, L18-23
25 In May 2007, as part of the plaintiff’s claim for compensation in relation to her left knee injury, the WorkCover insurer arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Clive Jones. In his report dated 16 June 2007, Mr Jones obtained a history that whilst the plaintiff was recovering from left knee surgery in February 2007,vc she developed lower back pain. Mr Jones noted that the plaintiff underwent a nerve root injection in early May 2007, which had not helped her backache. At this time, the plaintiff requested physiotherapy for her back, which Mr Jones thought to be reasonable, as he considered her back pain to have appeared “after her knee operation.”[17]
[17]DCB 32
26 On 22 August 2007, the plaintiff attended Dr Waleed Yousif at the Elms Street Medical Centre. His notes stated the plaintiff presented with “ongoing low back pain”[18] and right hip pain. Dr Yousif prescribed Endone medication to help with her severe pain. In cross-examination, the plaintiff said she could not recall what the script was for. Her recollection was that she received Endone mostly for knee pain, although she acknowledged that it also helped with her back pain.[19]
[18]DCB 88
[19]T30, L27-31, T31, L1-8
27 The plaintiff commenced receiving physiotherapy treatment from the Bacchus Marsh Medical Centre on 4 July 2007. The plaintiff’s initial two attendances were in relation to left knee pain but, from 23 July 2007, she also attended, from time-to-time, for lower back pain. Although the attendances continued to be predominantly in relation to her left knee injury, there were regular complaints of lower back pain, especially from April 2008.
28 On 7 April 2008,[20] an attendance on physiotherapist, Ms Taryn Capponi, noted that the plaintiff’s gardening was limited to 5 to 10 minutes at a time, due to knee and lower back pain. When asked about this in cross-examination, the plaintiff said it was her belief that the gardening restrictions were mostly attributable to her left knee.[21]
[20]DCB 33j
[21]T32, L29-31, T33, L1-6
29 On 27 June 2008, the plaintiff again consulted Ms Capponi, who noted that the plaintiff’s back was sore after marking school reports for the week. Her note stated: “Sitting +++”[22]
[22]DCB 35
30 The following day, the plaintiff saw Mrs Annette Pederson and received further physiotherapy treatment. The record on this date stated: “Acute LBP onset today bending in laundry.”[23]
[23]DCB 35
31 On 10 July 2008, the plaintiff again consulted Mrs Pederson, who noted that she had aggravated her lower back when lifting a pot plant the previous day.[24]
[24]DCB 35
32 The plaintiff was asked about these attendances and said that, although she could not recall them, she accepted the histories as accurately recording her complaints of back pain.
33 On 25 July 2008, the plaintiff again consulted Ms Capponi who recorded: “Back has been sore this week. Definitely notices that has to be very careful when lifting, aggravates back when lifts the shopping bags.”[25] When asked about this in cross-examination, the plaintiff said it was only after a flare-up of pain that she had to be careful with lifting, and denied it was a permanent restriction. [26] Given the regularity of her back flare-ups, however, I consider this would have been a relatively permanent restriction upon her at that time.
[25]PCB 36
[26]T36, L12-20
34 After considering these extensive medical records and the plaintiff’s evidence, I find that prior to 8 August 2008:
(i) the plaintiff suffered regular lower back pain;
(ii) the plaintiff’s back pain was subject to frequent flare-ups;
(iii) the plaintiff took medication for her back pain, and had also required a nerve root injection;
(iv) together with the plaintiff’s left knee injury, her lower back pain made it difficult for her to do activities which involved carrying things, bending over or prolonged sitting.
The injury and its consequences
35 On 8 August 2008, the plaintiff was assisting in celebrations for the Feast Day of Mary MacKillop. The plaintiff had been standing on a concrete floor, lifting slabs of soft drinks from the ground to a trestle table, and then spreading them out.[27] Whilst lifting one of the slabs, she experienced severe lower back pain, which she described as “worse than any back pain I had felt before”.[28] The plaintiff said that she felt her back go into spasm, such that she stopped what she was doing and removed herself from the festivities.
[27]PCB 72 and 73
[28]PCB 15
36 The plaintiff acknowledged that she had suffered episodes of back pain prior to the August 2008 incident, but considered this to be a “major”[29] incident that was “quite intense”.[30]
[29]T40, L18-21
[30]T40, L14-17
37 That evening, the plaintiff attended a pre-scheduled appointment at her physiotherapy clinic with physiotherapist, Mr Kusal Goonewardena. His record made no mention of lower back pain and referred only to treatment of the plaintiff’s knee injury.[31]
[31]PCB 36
38 The plaintiff was cross-examined about this attendance, and was adamant that she had informed Mr Goonewardena of her increased back pain and that he had treated her for it. The plaintiff was insistent that she could recall “… thinking, ‘Thank goodness I've got that appointment with the physio,’ because I needed a physio.”[32]
[32]T39, L16-19
39 The plaintiff again consulted Mr Goonewardena on 11 August 2008, who noted that the plaintiff’s lower back was “playing up”.[33]
[33]DCB 36
40 On 19 August 2008, the plaintiff completed an incident report as well as a WorkCover claim form. The incident report referred to the plaintiff as suffering a “slight pull in the lower back”.[34] The claim form stated that she attended the first aid room after the incident “due to severe pain.”[35]
[34]PCB 72
[35]PCB 73
41 The physiotherapy clinic records indicate the plaintiff attended for further treatment of her lower back pain on 15 August and 29 August 2008.[36]
[36]DCB 36
42 On 23 August 2008, as the plaintiff was unable to obtain an appointment with Dr Wu, she instead consulted Dr Miriam Blashki at the Elms Street Medical Centre. Dr Blashki’s note of this attendance was as follows:
“requesting referral for remedial massage as recommended by physio.
Left knee pain creating back pain.”[37]
[37]DCB 96
43 The plaintiff accepted it was likely she did not tell Dr Blashki about the August 2008 incident. She said she may have linked the back pain to her left knee pain, as that was an accepted WorkCover claim, under which massage treatment could be paid.[38]
[38]T41, L1-26
44 Thereafter, the plaintiff obtained occasional massage treatment from Mr Paul Gardner, remedial masseur.[39]
[39]PCB 42
45 On 23 September 2008, the plaintiff attended Dr Wu and informed him of the August 2008 incident. He noted the plaintiff suffered lower backache with some radiation across the upper buttocks.[40] He provided the plaintiff with a further script for Mobic.
[40]PCB 96
46 In a further monthly review, on 21 October 2008, Dr Wu’s only reference to the plaintiff’s lower back pain was that she was obtaining remedial massage.[41]
[41]DCB 97
47 On 1 December 2008, the plaintiff attended Dr Wu and the following history was recorded :
“acute lower back strain yesterday-was at home bending to reach to get something when she felt a sudden twang of pain in the lower Central lumbar area, no radiation into legs, worse with movement
o/e walking with a hunched over posture“.[42]
[42]DCB 97
48 Dr Wu prescribed Endone, which he noted was needed for her severe pain.[43] The plaintiff could not recall this incident, but accepted the note as accurate.[44]
[43]DCB 97
[44]T48, L13-18
49 Following the August 2008 incident, the plaintiff said she continued to have fairly regular flare-ups of back pain, for which she took anti-inflammatory medication and obtained remedial massage.[45]
[45]PCB 16
50 On 26 October 2010, a CT scan was performed on the plaintiff’s lumbar spine. It demonstrated some disc bulging with no nerve impingement, as well as degenerative changes.[46]
[46]PCB 33A
51 On 11 November 2011, the plaintiff again consulted Dr Wu in relation to her lower back pain. At that time, he recommended Pilates and continued to provide her with scripts for analgesics.[47]
[47]PCB 42
52 On 3 April 2012, the plaintiff again consulted Dr Wu. At that time, he noted that she continued to have lower back pain and stiffness, with difficulty bending and getting up from lying down, or from sitting on low seats. He recommended physiotherapy treatment.[48]
[48]PCB 42
53 In April 2012, after ceasing the use of Oxycontin, Dr Wu recommended the plaintiff commence using a Norspan analgesic patch. The strength of those patches increased over the next few months. Dr Wu stated that the use of strong analgesics was for both the plaintiff’s left knee and lower back pain, and that it was impossible for him to separate the use of the analgesia for each of the two conditions.[49]
[49]PCB 42
54 On 3 September 2012, a further CT scan was performed on the plaintiff’s lumbar spine. It demonstrated multi-level disc degeneration.[50]
[50]PCB 33B
55 The plaintiff said that in late 2013, whilst marking written school work as well as completing school reports, she was required to sit for prolonged periods and that she suffered severe pain in her lower back.
56 The plaintiff again consulted Dr Wu, who arranged for a further CT scan to be performed.
57 On 14 November 2013, a CT scan of the plaintiff’s lumbar spine demonstrated that the left paracentral disc at the L2-3 level was more prominent when compared to the 2012 CT scan.[51]
[51]PCB 33C
58 At that time, the plaintiff was referred to neurosurgeon, Mr Paul D’Urso. He first examined the plaintiff on 3 February 2014, and noted her history of lower back pain, including the August 2008 incident. Mr D’Urso considered that the plaintiff was suffering symptoms from degenerative disc disease and that she may be suffering a degree of L5 nerve root impingement at L4-5. Mr D’Urso did not recommend surgery, but instead recommended an epidural injection for diagnostic and therapeutic purposes at L4-5.[52]
[52]PCB 56
59 The plaintiff underwent the epidural injection in February 2014 and stated that it provided her with temporary relief of only two weeks.
60 Dr Wu referred the plaintiff to pain specialist, Dr Jason Chou, in July 2015. The plaintiff sought advice from Dr Chou in relation to her chronic left knee pain, together with her lower back pain and right leg and right knee pain.[53] The plaintiff initially consulted Dr Chou on a monthly basis, then on a six-monthly basis, and subsequently saw him every 12 months. More recently, the plaintiff has seen Dr Chou every three to four months.[54]
[53]PCB 59
[54]PCB 28
61 In his most recent correspondence dated 12 May 2016, Dr Chou stated that the plaintiff’s main complaint was her lower back pain.[55]
[55]PCB 59
62 Dr Chou referred the plaintiff to the Dorset Rehabilitation Clinic in Pascoe Vale, where she underwent a pain management course from August 2014 to November 2014.[56]
[56]PCB 18
63 The plaintiff was absent from her employment for the first half of 2014, due to her lower back pain and a right knee replacement she underwent in April 2014. She thereafter returned to work part-time, increasing to full-time by the end of Semester 2, 2014. The plaintiff was then absent for the first semester of 2015, as she was entitled to long service leave and wanted to rest in order to help her back pain.[57]
[57]PCB 19‒20
64 The plaintiff then worked until the end of 2015, at which time she retired, having worked for the defendant for 40 years. The plaintiff stated that she had not planned to retire at that time, but felt that her back pain was such that she could not continue at work. In particular, she felt that sitting for prolonged periods, whilst marking students’ work, caused her increased back pain.[58]
[58]PCB 20
65 Since retiring from full-time teaching, the plaintiff has done some occasional work as a relief teacher. She said she is able to cope with such work, as it is occasional, and she is not required to do any preparation or marking of work, nor attend long meetings, all of which require prolonged sitting.
66 The plaintiff states that she continues to suffer from constant daily back pain, with severe flare-ups about once a month.[59] She said that she is careful in the activities she performs, so as to avoid such flare-ups. In particular, she is limited in certain household duties, such as making the bed, as it aggravates her lower back pain.
[59]PCB 29
67 The plaintiff continues to attend Dr Wu on a regular basis, and obtains hydrotherapy treatment once a week. The plaintiff currently takes Lyrica, Mobic and Endep for both lower back and left knee pain. The plaintiff said she also takes Endone when she experiences a severe flare-up of back pain, which she estimates occurs about once a month.[60]
[60]PCB 28
68 The plaintiff does exercises at home on a daily basis, to strengthen both her back and knees. Such exercises include core strength exercises, as well as bike riding.[61]
[61]PCB 29
69 The plaintiff applies heat and cold packs to her lower back on a regular basis, and also applies an anti-inflammatory gel to her lower back at least twice per day.[62]
[62]PCB 29
70 The plaintiff also said that driving long distances causes an increase in back pain. She said that she can drive or sit in the car for 45 minutes to an hour, but after that needs to stop and rest her back. The plaintiff said that she and her husband drove to Sydney last year and took multiple stops along the way in order for her to rest her lower back.
Medico‑legal evidence
71 The plaintiff’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr John O’Brien, in June 2016. In his report dated 27 June 2016, Mr O’Brien noted that the plaintiff had first become aware of some lower back pain in 2006, which she associated with difficulties walking due to her left knee injury. Mr O’Brien noted the plaintiff obtained some massage therapy which provided some temporary symptomatic relief.[63] Mr O’Brien further noted that since the August 2008 incident, the plaintiff had described constant pain associated with frequent flare-ups, the most prominent being in late 2013.[64] Mr O’Brien then concluded that the plaintiff was suffering chronic non-specific lower back pain, of which he considered employment to be a significant contributing factor. However, in stating that employment is a significant contributing factor, Mr O’Brien did not expressly distinguish between the three possible work-related causes:
[63]PCB 65
[64]PCB 69
(i) lower back pain arising from the accepted left knee injury; and/or
(ii) the August 2008 incident; and/or
(iii) the marking of exams papers in late 2013.
72 The defendant arranged for the plaintiff to be examined by general surgeon, Mr Timothy Gale, in May 2013. Mr Gale obtained a history from the plaintiff that she had:
“… first developed discomfort in the lower back while convalescing from a work-related operation on the left knee, during 2007. She had ongoing back discomfort and did require some physiotherapy and tablet medication subsequently.”[65]
[65]DCB 5
73 He then obtained a history that, following the August 2008 incident, the plaintiff had suffered increased lower back pain, and that she had suffered:
“… constant pain in the lower back, she has never been free of pain since 2008 and she has had three or four episodes of severe painful ‘spasms’ with acute flare-up of pain causing increasing disability.”[66]
[66]DCB 6
74 Mr Gale considered that the August 2008 incident had aggravated the plaintiff’s pre-existing painful low back condition.[67]
[67]DCB 8
75 The defendant also arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Michael Dooley, in May 2016. In his report dated 1 June 2016, Mr Dooley noted that in the past, the plaintiff had suffered “some intermittent low back pain secondary to problems with her knees.”[68]
[68]DCB1
76 He also noted that following the August 2008 incident, the plaintiff said:
“that every now and again she would note acute episodes of intermittent low back pain and spasm. Towards the end of 2013, she had a long lasting exacerbation. Last New Year’s Eve again was associated with a bad episode of low back pain.”[69]
[69]DCB 1-2
77 Mr Dooley was of the opinion that the August 2008 incident was an aggravation of the plaintiff’s underlying degenerative disc disease, and considered the difficulties described by the plaintiff in relation to sitting, standing, bending et cetera to be “typical of symptomatic degenerative disc disease of low lumbar spine.”[70] Mr Dooley considered that the plaintiff’s complaints of ongoing pain related to:
“the soft tissue injury sustained in the work-related episode of August 2008 and also to the natural evolution of her underlying degenerative disc disease at the lumbosacral level of the spine.”[71]
[70]DCB 3
[71]DCB 4
78 I consider that Mr O’Brien, Mr Gale and Mr Dooley each had an incomplete history in relation to the plaintiff’s past history of lower back symptoms. The description provided to each doctor significantly understated the symptoms the plaintiff had experienced over many years, and, in particular, the treatment she required in 2007 and the first half of 2008. None of the doctors had the full picture in relation to the plaintiff’s pre-existing lower back condition, including the radiology report of April 2007. None of the doctors were advised of the incident occurring on 30 November 2008 which, according to the medical records, appears to be a more significant event than the August 2008 incident.
79 I therefore gain little assistance from any of these reports, in determining whether or not the August 2008 incident is a cause of the plaintiff’s current injury and impairment.
Is the August 2008 incident a cause of the plaintiff’s current impairment?
80 I accept that the plaintiff was a truthful and genuine witness. However, at times her memory was poor, and she could often not recall events which occurred many years ago. For that reason, I considered her to be, at times, an unreliable witness. The plaintiff’s poor memory was best illustrated by her failure to recall taking Vioxx medication in 2004. Mr Murdoch asked her several questions about this, in an attempt to refresh her memory, but she consistently said she could not recall it, including her need to cease taking it after a worldwide recall in October 2004. [72]
[72]DCB 79i
81 I consider the plaintiff’s account of her symptoms in the period after August 2008, to have been unintentionally inflated by the prism of retrospect. The medical records indicate she had frequent flare-ups of lower back pain prior to August 2008, resulting in pain and restriction on her activities. The contemporaneous medical records in August and September 2008, do not demonstrate the major event which the plaintiff now describes. Further, the medical record of 1 December 2008 seems more dramatic in relation to a major event occurring, as the plaintiff consulted her doctor the following day when she was crouched over and described a “sudden twang of pain”.
82 The plaintiff’s evidence was that after the August 2008 incident, her “pain level went up dramatically.” However, I do not consider this to have been borne out in the contemporaneous medical records. Although I accept the plaintiff as truthful, my concerns as to her reliability are such that I am not satisfied the August 2008 incident was the major event she now claims it to be.
83 I accept the plaintiff’s evidence that, on 8 August 2008, she told her physiotherapist that she had hurt her lower back at work. Given the emphatic nature of the plaintiff’s evidence in relation to this attendance, I do not attach great significance to the absence of a medical report on that day. I can reconcile such an absence on the basis the physiotherapist may have been busy, and may not have accurately recorded all the plaintiff complained of.
84 However, the note on 11 August 2008, that the plaintiff’s lower back was “playing up”, seems inconsistent with the plaintiff’s claim that the August 2008 incident was a major event.
85 The plaintiff did not see a doctor until she attended her medical clinic on 23 August 2008. The record of this day is also inconsistent with the plaintiff’s evidence that the August 2008 incident was a major event. Dr Blashki related the back pain to her left knee pain, with no mention of the August 2008 incident. The plaintiff could not recall this attendance, but sought to explain this record by supposing that she may have given a history of back pain arising from her left knee injury, to enable massage treatment for her back to be paid under her existing WorkCover claim. I did not find this supposition a credible explanation, as I consider it unlikely that the plaintiff, who was an otherwise truthful witness, would have constructed such a false history when consulting her doctor.
86 Dr Wu’s record of the plaintiff’s attendance on 23 September 2008, referred to the August 2008 incident. However, this record did not suggest there had been a dramatic deterioration in the plaintiff’s lower back.
87 The plaintiff next attended upon Dr Wu on 21 October 2008, and the only reference to the plaintiff’s lower back at this time, was in relation to a further referral for lower back remedial massage.
88 I then note that the plaintiff’s attendance on Dr Wu on 1 December 2008, described what appears to be a major incident. The plaintiff attended in a hunched over position and described suffering an “acute lower back strain” the previous day, with a “sudden twang of pain”. I consider this record is suggestive of a major incident, requiring medical care within 24 hours. This record seems to be in contrast to the lack of records in August and September 2008, regarding the August 2008 incident.
89 As the August 2008 incident is alleged to have caused a permanent aggravation of the plaintiff’s pre-existing lower back condition, it is necessary for me to compare the plaintiff’s pre-existing condition prior to the August 2008 incident with the aggravated state. I must consider only the consequences arising from the aggravation, in accordance with the principles enunciated in Petkovski v Galletti.[73]
[73][1994] 1 VR 436
90Chernov JA, in R J Gilbertson v Skorsis, summarises the task:
“In determining whether an injury which is an aggravation of a pre-existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.” [74]
[74][2000] VSCA 51 at [40]
91 Prior to the August 2008 incident, the plaintiff suffered lower back pain on a regular basis. At various times, it has been described as “chronic”,[75] “persistent”,[76] “ongoing”[77] and “worrying”[78]. The plaintiff required some pain and anti-inflammatory medication and some physiotherapy and massage therapy. She had received a nerve root injection, which had provided only short-term pain relief. The plaintiff suffered flare-ups of back pain following activities, such as lifting either shopping bags or a pot plant, bending over in the laundry and prolonged sitting after marking school reports. Her gardening was limited to five to ten minutes at a time, due to a combination of knee and lower back pain.
[75]DCB 79G
[76]DCB 111
[77]DCB 88
[78]DCB 42
92 None of the medico-legal specialists had the complete history of the plaintiff’s lower back condition prior to the August 2008 incident. I therefore obtain little assistance from them, in respect of the significance of the August 2008 incident, on the plaintiff’s current condition.
93 The onus is on the plaintiff to satisfy me that the August 2008 incident has caused an aggravation of her pre-existing symptomatic degenerative spine, and that such an aggravation persists and causes an impairment, the consequences of which are at least very considerable.
94 While I accept the plaintiff’s evidence that her lower back pain worsened after the August 2008 incident, there were multiple events prior and subsequent to that incident which also resulted in significant flare-ups of pain. I also note that the plaintiff’s condition further deteriorated in late 2013, and that this may have occurred as part of the natural progression of her symptomatic degenerative condition irrespective of the August 2008 incident.
Conclusion
95 In taking a “whole of evidence”[79] approach, for the reasons detailed above, I consider the evidence is deficient, in that the plaintiff has failed to satisfy me that the August 2008 incident has caused her a permanent impairment, the consequences of which are at least very significant. I must therefore refuse her application.
[79]Davies v Nilsen & TAC [2014] VSCA 278 at [107]
96 I shall make the consequent orders.
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