Francis v Woolworths Group Limited
[2018] VCC 627
•10 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-02217
| RACHEL LOUISE FRANCIS | Plaintiff |
| v | |
| WOOLWORTHS GROUP LIMITED | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2018 | |
DATE OF JUDGMENT: | 10 May 2018 | |
CASE MAY BE CITED AS: | Francis v Woolworths Group Limited | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 627 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – loss of earning capacity – paragraph (a) “serious injury” – injury to the lumbar spine
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Berthelot v Fleetweld Pty Ltd [2015] VCC 1453; Browne v Dunn (1893) 6 R 67
Judgment: Leave granted for the plaintiff to commence proceedings for damages for loss of earning capacity.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr E Makowski | Shine Lawyers Pty Ltd |
| For the Defendant | Mr P D Elliott QC with Ms F Spencer | Sparke Helmore |
HIS HONOUR:
Introduction
1 This is a remarkable case, made so largely by the reports of a neurosurgeon, Associate Professor Graeme Brazenor, for two reasons. After examining Rachel Francis and carefully examining various documents and scans, he concluded that she was feigning her symptoms and restrictions. Second, the failure of the treating specialist, Mr Craig Timms, to answer the several reasons given by Associate Professor Brazenor for his view.
2 Ms Francis seeks permission to commence a proceeding seeking damages, relying on paragraph (a) of the definition of “serious injury” in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). To do so, she must prove she has suffered a “serious injury”, being a permanent serious impairment or loss of a body function of the spine with a focus on the lumbar spine. For “serious” she relies on the consequences of pain and suffering and loss of earning capacity. However, at the start of the hearing, the defendant agreed her injury is “serious” in relation to the former but not the latter. So the case was fought over loss of earning capacity consequences.
3 I heard from Ms Francis alone. The documents in two court books were admitted into evidence. Owing to a lack of time, the parties made written submissions.
Circumstances
4 Ms Francis is now twenty-eight. She was born in New Zealand, but came to this country in 2001. She completed Year 11 at a secondary school in Hallam. During Year 11 she obtained a Certificate II in Retail Operations. After leaving school, she worked as a shop assistant at Bunnings for two years. She then got an apprenticeship in spray painting. However, she left after ten months due to pregnancy. When her son was six months old, she became a security officer with DML Security Management and obtained a Certificate II in security, baton and handcuffs training. She worked there between 2009 and 2011.
5 In December 2008, Ms Francis gave birth to her first child, Hunter.
6 On 20 December 2008, Ms Francis had an accident while riding a mountain bike. She spent nine days in hospital. She could not move one of her legs.
7 In October 2010, Ms Francis started working for the defendant as a sales assistant in the delicatessen of its supermarket in Stud Park. Her work was part time.[1] On average, she worked about twenty-three hours each week.
[1]In paragraph 7 of her affidavit sworn 4 November 2015, Ms Francis sets out her gross income in the financial years 2006 to 2013
2011
8 In April, Ms Francis married.
9 On 10 May, Ms Francis was leaning into a display case to retrieve a chicken for a customer when she felt a very strong and sharp pain in her back. She called for a manager and waited forty-five minutes before being able to go home. She described the nature and background of this movement:[2]
“Throughout the course of my employment I was required to lean into the cases at the delicatessen to pick food for customers and also to clean the cases. I was required to do this hundreds of times a day. It was a very awkward movement for me as I am very tall and there was only a narrow opening in the case for me to lean through to pick the products.”
[2]Plaintiff’s affidavit sworn 4 November 2015 at paragraph [11], Plaintiff’s Court Book (“PCB”) 4
10 The next day, she saw her then general practitioner, Dr Becker. X-rays on 18 May showed retrolisthesis of L5 on S1, loss of disc space height at L5-S1 and facet joint degeneration. The radiologist concluded there were degenerative changes at the lumbosacral junction.[3]
[3]PCB 30
11 At the time of the accident, Ms Francis intended to apply to join Victoria Police as a police member when her son started school. This was so even though she weighed about 120 kilograms. If she was not accepted into the police force, she intended to work full time in some other job.
12 Ms Francis has never returned to work following the accident on 10 May. While working for the defendant, she earned an average gross weekly income of $583.61 for an average of 23.49 hours of work. She earned less before working for the defendant.[4]
[4]See exhibit 2
13 On 15 November, Ms Francis saw a neurosurgeon, Mr Craig Timms. She told him of increasing pain in the back and legs over a few days after the incident. The pain in the right was worse than the left. The right leg developed numbness and weakness, causing her leg to collapse.
14 Also on 15 November, the report of MRI scans described for the L5-S1 disc noted:[5]
“Desiccated minimally narrow disc with a small annular fissure and mild broadbased posterior disc protrusion. Associated degenerative retrolisthesis resulting in borderline mild central canal stenosis with contact of the descending S1 nerve roots bilaterally. No foraminal stenosis.”
[5]PCB 31
15 Despite the description, Mr Timms considered the protrusion as large.[6]
[6]PCB 48
16 On 21 November, Ms Francis received an epidural injection immediately adjacent to her right L5 nerve root as it passed through the neural exit canal. It had the immediate effect of stopping the tingling sensation in her right leg.[7] It gave relief for about eight hours.
[7]PCB 33
2012
17 On 12 January, Mr Timms wrote to the defendant’s insurer seeking permission to perform a fusion at the L5-S1 level. He said the injection gave relief for a short time. Her back pain and sciatica were incapacitating. The pain was due to a slip (retrolisthesis) at L5-S1 and the uncovering of the disc causing neural pain.[8]
[8]PCB 44
18 On 31 January, Ms Francis collapsed at home when her right leg gave way for no apparent reason. She went to hospital by ambulance. On admission, the hospital recorded:[9]
“…Today due to her resulting sciatica Pt states her right leg gave way from under her, she has fallen to the ground – she immediately noticed severe lumbar back pain and complete numbness and loss of movement to her legs … .”
[9]Defendant’s Court Book (“DCB”) 124
19 In the Discharge Summary, the description was:[10]
“… she presented following sudden onset of numbness below T12 level associated with sequential weakness of right leg followed by the left leg over the course of 24 hours.”
[10]DCB 138
20 The same day, CT scans were made. The radiologist concluded:[11]
“No lumbar spine fracture. No focal abnormality is demonstrated to account for the patient’s current presentation. An intrathecal pathology is however not excluded.
Grade 1 retrolisthesis of L5 on S1 with associated mild disc desiccation and posterior broad based disc bulge.”
[11]DCB 140
21 On 1 February, MRI scans raised the possibility of a spinal cord infarction. However, the study was described as “suboptimal”.[12] Two days later, a radiologist concluded from further MRI scans there was no evidence of intracranial or spinal cord abnormality.[13] A CT angiogram on 1 February found nothing unusual and, similarly, CT scans of the brain the next day.[14] Nerve conduction studies showed no normal motor and sensory responses of her legs. She was discharged on 16 February. On her discharge, the hospital did not know the cause of the weakness in her legs. Her general practitioner, Carlos Morales, believes she experienced a “spinal cord stroke” but the evidence from the hospital negates this view.[15]
[12]DCB 146
[13]DCB 143-144
[14]DCB 148-149
[15]PCB 43. Ms Francis says she was told that there was a spinal cord stroke at the hospital.
22 Mr Timms visited Ms Francis while she was a patient in the hospital. However, he makes no mention of her admission or his visit in his reports.
23 On 16 April, Mr Timms fused the vertebrae above and below the L5-S1 level at the rear and removed “a large degenerative” L5-S1 disc.[16] Two 12-millimetre lordosed cages were placed in the disc space. These were packed with bone.
[16]PCB 49
24 At the time of the operation, Ms Francis was twenty-two.
25 On 13 July, further MRI scans suggested a tiny or very small (8-9-millimetre) left pre-foraminal disc extrusion with probable contact with the exiting L5 nerve root.
26 In September, MRI scans revealed a minor protrusion at T1-2.
27 In December, an orthopaedic surgeon, Mr Andrew Tang, diagnosed bursitis in both of Ms Francis’ knees. MRI scans revealed structural integrity of the ligamentous process and no inflammation. Mr Tang believed her knee symptoms originated from quadriceps weakness, which may have developed from her spinal injury.[17]
[17]PCB 52. Associate Professor Brazenor refers to reports of Mr Tang in 2012 and 2014 and reports of MRI scans, DCB 70B and 70C
28 On 5 December, Ms Francis fell when her right leg gave way. She had no feeling below the waist, and tingling in her fingers. An ambulance took her to the Monash Medical Centre. MRI scans of her thoracic and lumbar spines showed no significant abnormality to account for her presentation.[18] While an inpatient, she was psychiatrically assessed. She was an inpatient for two weeks.[19]
[18]DCB 109
[19]The hospital’s notes cover the period between 5 and 14 December. They do not contain anything relating to discharge
29 After this fall, Ms Francis started using a crutch to support her right leg when walking outside her home.
2014
30 On 7 January, Mr Timms re-examined Ms Francis. She had lost 40 kilograms in weight following a gastric sleeve procedure. She felt a lot better and her knee and back symptoms were improving. Tingling and numbness continued in her arms, with pain in her neck and back. Despite the improvement, Mr Timms said she was completely incapacitated for work. He foresaw the need for physiotherapy, hydrotherapy, massage and analgesic medicine.
31 In September, Ms Francis started exercise physiology with Mr Marc Rotunno.[20] Previously, she had had physiotherapy two or three times each week.
[20]PCB 58-61
32 On 25 September, Associate Professor George Mendelson, psychiatrist and pain medicine physician, saw Ms Francis at the request of the defendant’s solicitors.[21] At that date, Associate Professor Mendelson considered she did not suffer from any diagnosable mental disorder. He felt she had an Adjustment Disorder with Mixed Anxiety and Depressive Reaction, but it was in remission. There was a mild impairment of her mood, which was a result of her physical symptoms.
[21]Report dated 17 October 2014, DCB 1-26
33 Referring to “case notes” and taking a particular comment from them, Associate Professor Mendelson raised the possibility of conversion symptoms: Physical symptoms without an organic basis, noting her general practitioner does not mention it in his report. However, in answering questions from the solicitors, he said he was unaware of any indications that during her consultation, Ms Francis was voluntarily or involuntarily exaggerating either physical or emotional symptoms.
34 Associate Professor Mendelson maintained there was no loss of her work capacity due to psychiatric illness or impairment. She could undertake a vocational rehabilitation program. He thought she might benefit from a “time-limited” pain management program.
2015
35 On 25 March, Mr Kenneth Brearley, surgeon, examined Ms Francis at her solicitor’s request.[22] He found marked restrictions in lumbar spine movements, significant limitation in straight leg raising, weak reflexes and reduced sensation over the right leg. Implicitly, he considered her unfit for all work.
[22]Report dated 25 March 2015, PCB 94-101
36 Mr Brearley was given reports of two investigators and watched video footage of Ms Francis on five occasions between 20 October 2012 and 26 November 2014. He gave a brief report, concluding:[23]
“I find nothing in the footage which would lead me to change the opinions which I expressed to you in my report of 25th March 2015. It was only the lower segment of the spine which was fused and there is some mobility naturally of the remainder of the vertebral column which does allow significant movement.”
[23]Report dated 12 May 2015, PCB 102
37 On 1 April, Dr Nigel Strauss, psychiatrist, saw Ms Francis at her solicitor’s request.[24] He assumed she had genuine physical symptoms. He did not believe her presentation was psychologically based. He excluded a Pain Disorder. There was nothing in the interview to suggest she deliberately exaggerated her problems. She has a significant Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, which he found unsurprising given what had happened to her. He disagreed with Associate Professor Mendelson’s view that the Disorder was in remission. For as long as she has significant physical problems, she will have significant psychological problems. His prognosis was guarded.
[24]Report dated 1 April 2015, PCB 62-69
38 On 25 May, Dr David Middleton, physician, examined Ms Francis at the request of her solicitors.[25] He concluded she could not perform her pre-injury duties, or any other duty she had previously performed, for they exceeded her current safe physical capacity. She could perform sedentary non-manual duties provided she does so in a self-paced manner, with breaks as she requires them. The height at which she could work is limited, as are the weights she could lift, or the force she could apply. Due to medication, she should avoid machinery and work part time.
[25]Report dated 15 June 2015, PCB 70-93
39 After examining the concept of “suitable employment”, Dr Middleton considered she no longer has the capacity to undertake such employment.
40 On 27 June, Ms Francis gave birth to her second child, Blaise.
41 On 15 July, Mr Timms wrote to the plaintiff’s solicitors. One paragraph concerned her knees:[26]
“Since my last medical report I have not seen Mrs Rachel Francis. I have received correspondences from the orthopaedic surgeon Mr Andrew Tang. He has reviewed her with regard to pain and instability in both of her knees. As I understand that she has had MRI scans of the knees. These reveal structural Integrity of the ligamentous process and no inflammation. Mr Tang believes that her symptoms in the knees originate from the quadriceps weakness and believes that this may have developed from her spine injury.”
[26]Report dated 15 July 2015, PCB 52
42 In August, MRI scans showed no canal or foraminal stenosis and mild right L5‑S1 facet degeneration.
43 During 2015, Ms Francis and her family flew to Hawaii for a holiday. She stayed five or seven days.
2016
44 In about February, Ms Francis was driving a car when struck by another. She drove home after the accident. She collapsed after getting out of the car and spent a “couple” of days in hospital.[27] She did not suffer any further injury to her back despite making a claim upon the defendant.
[27]Plaintiff’s affidavit sworn 21 November 2016 at paragraph [12], PCB 19
45 On 27 April, Mr Lance Fernandes saw Ms Francis on behalf of an authorised agent.[28] Mr Fernandes described his role as “occupational rehabilitation”. Mr Fernandes possessed two medical reports; a report from Mr Hooper, dated 20 August 2014, and a report from Dr Morales, dated 8 March 2016. Based on her employment history and transferable skills, he considered she could seek employment in six jobs: Customer service representative; stock clerk; receiving clerk; paint sales representative; rental supervisor and alarm security or service monitor. Seeking such employment was dependent upon Ms Francis being certified “with a suitable capacity to return to work”.
[28]PCB 103-113
46 During the year, Dr Manju Bhargava became Ms Francis’s general practitioner following the death of Dr Morales. He supplied a brief report in which he agreed with Mr Timms’ assessment that she is completely incapacitated currently and her condition is largely stabilised.[29]
[29]Report dated 5 December 2017, PCB 58a. Dr Bhargava refers to Mr Timms’ report dated 20 October 2017
47 On 23 December, Ms Francis gave birth to her third child, Kensie.
48 During this year, Ms Francis and her family flew to Malaysia to celebrate her father’s sixtieth birthday. She stayed about seven days.
2017
49 During this year, Ms Francis saw her exercise physiologist, Mr Marc Rotunno, twice weekly; Dr Bhargava, monthly, and her psychologist, Ms Joanne McDonald, irregularly on an “as needed” basis. She still thought of suicide, but not as often as a couple of years ago.
50 On 6 April, Mr David Barton, occupational physician, examined Ms Francis at the request of the defendant’s solicitors.[30] He found her strongly symptom and disability focused, with a strong sense of injury and entitlement. From his perspective, the examination showed a strong functional component to her complaint. There were a number of findings that did fit with a straightforward physical problem and suggested a significant degree of overlay. In particular:
[30]Report dated 11 April 2017, DCB 71-78
(a)a long history of dramatically described symptoms, which is typical of abnormal illness behaviour;
(b)the increase in symptoms on axial loading;
(c)the discrepancy between her limited straight leg raising and postures noted at other times during the examination;
(d)the global weakness throughout the right leg; and
(e)non-anatomical sensory changes.
51 Mr Barton was uncertain about Ms Francis’ true physical problem because of the features of functional overlay. Nevertheless, there was a possible radiculopathy. He saw little likelihood of improvement in the foreseeable future because of her entrenched sick role. With motivation, she could do a number of normal domestic and social tasks (for example camping, driving and shopping). She could not return to her pre-injury duties. She could do alternative work on a full-time basis with limits on weight lifting, and avoiding awkward or constrained postures for prolonged periods. He thought light supermarket stores work and office and administrative activities were well within her physical capabilities. She could engage in occupational retraining. She could do the jobs identified by Konekt on a full-time basis.
52 On 21 and 22 April, Ms Francis was videoed. On the first date, she is seen leaving a medical clinic in Cranbourne, accompanied by her husband and her youngest two children. She then went by car to her mother’s home in Narre Warren South. On arrival, she assisted a child from the car. She walked back to the car, back to the house and then to the car, all without using her crutch. She then drove to her doctor’s clinic in Narre Warren. She used the crutch to enter and leave the clinic. She returned to her mother’s home. She left the car and entered the house without using the crutch. She returned to the car carrying a baby capsule. After putting the capsule in the car, she drove to her home. She then collected her eldest child from school.
53 On the second day, Ms Francis collected her children and mother and went to a swimming pool in Narre Warren South. She returned home. She took the youngest child from the car and carried her into the home without using a crutch.
54 Four hours later, Ms Francis put this child into the capsule. She walked without the crutch. She went by car to a nearby suburb. She then drove to the Epworth Hospital in Richmond to see a surgeon. After, she drove back to a take-away food outlet before returning home.
55 On 12 May, Associate Professor Brazenor, neurosurgeon, examined her at the request of the defendant’s solicitors. This led to three reports.[31] These reports are detailed. In each, Associate Professor Brazenor comments on various documents given to him, including reports of radiological examinations. He is given a number of reports which were not shown to me. He is analytical, with some of his comments strong. For example he said of Mr Brearley, after reading his report dated 25 March 2015:[32]
“Comment: I regret to say that this is clearly the case of a retired general surgeon opining well outside the scope of his clinical training, experience and expertise. The report should be disregarded.”
[31]19 May 2017, 27 October 2017 and 24 December 2017, DCB 41-70 and 70A-70m
[32]DCB 47
56 Other examples are his criticism of Mr Hooper for assuming a grade I-II spondylolisthesis instead of the retrolisthesis found by Mr Timms, and the Medical Panel making the same mistake.
57 During his examination, Associate Professor Brazenor noted Ms Francis sat nonchalantly and apparently comfortably in a cross-legged position. He commented sitting cross-legged is anathema to people with severe low back or leg pain as it increases their pain. He noted the erector spinae muscles were very slack and this was very much against pain coming from her lumbar spine. When he gently palpated her lower back, she did not flinch or say anything. The absence of sensation in part of her right leg, he viewed as impossible, given the involvement of the L5-S1 segment. With the knees, there was no sign of ligamentous laxity or wasting of the right quadriceps.
58 Associate Professor Brazenor concluded there was very good evidence against Ms Francis having significant pain and disability arising from the May 2011 accident and gave five reasons for the view.
59 The defendant’s solicitors then obtained more reports and records and gave them to Associate Professor Brazenor. In a second report, he commented on some. He saw the CT scan of 21 September 2017 of the lumbosacral spine. It showed a solid fusion and no discernible abnormality elsewhere, thereby excluding the possibility of a significant pain generator in that part of her spine. He considered the accident caused a central protrusion at an already degenerative L5-S1 disc, but she now had a normal spine for her age, with a technically perfect and completely healed L5-S1 fusion. He reiterated his view of very good evidence against significant ongoing pain and disability stemming from the May 2011 accident, and now gave six reasons for the view. He saw her as feigning symptoms and restrictions. In answer to the question: “In your examination history of the Applicant, do you consider that, at any time, the Applicant voluntarily exaggerated her symptoms/restrictions?”, he answered “Yes”. Indeed grossly so. He did not answer the question about involuntary exaggeration.
60 Associate Professor Brazenor felt Ms Francis could not return to her pre-injury position because she should not bend from the waist or access levels less than 600 millimetres above the floor or ground. She could return full time to certain jobs: Checkout cashier at a supermarket (but not stocking shelves); security guard on patrol; security guard in a control room; a courier, but with deliveries of less than 5 kilograms; telephone customer service; selling real estate, parking officer or meter reader. The last two jobs involve walking, which would be excellent for the maintenance of her spinal health.
61 The defendant’s solicitors then sent Associate Professor Brazenor an MRI scan on disc dated 23 October 2017, together with documents, including a report from Mr Timms, dated 5 December 2017, and another from Mr John O’Brien, orthopaedic surgeon, dated 25 September 2017. He reported a third time, maintaining Ms Francis was feigning her symptoms and restrictions.[33] He now gave seven reasons:
[33]Report dated 24 December 2017, DCB 70A-70M
(a)she presented twice to the Monash Medical Centre Emergency Department with “pseudo-paraplegia”. Each time the condition resolved without treatment. There was no causative neurological lesion. Experienced practitioners concluded her presentation was functional, not organic;
(b)the MRI scans do not show an existing organic cause of her pain in her cervical or lumbar spine. Except for the decompression and fusion, the rest of her lumbar spine is how one would expect it for a person of her age. The decompensation and fusion was done properly and should not give significant pain. Regarding her cervical spine, there are three sets of MRI scans over five years. Three show degenerative changes which are common and usually without symptoms. There has been no progression of the degenerative changes. This argues against any structural injury in 2011, or in the two years before 25 September 2012;
(c)the radiology over the years is inconsistent with her complaints of severe pain and almost total disability;
(d)two experienced spinal surgeons (Mr John O’Brien and Associate Professor Brazenor) and an experienced medico-legal examiner (Mr Barton) found no neurological disability in her lower limbs and no weakness at either knee;
(e)there were clear signs to Associate Professor Brazenor that Ms Francis was feigning symptoms at his examination. Both Mr O’Brien and Mr Barton made comments on those symptoms;
(f)the radiology denies her complaint that the decompression and fusion made no difference (except for “clicking”) and there was no improvement, even though her only pain-producing disc was removed;
(g)despite severe and ongoing pain and disability, Ms Francis had two pregnancies, which is inconsistent.
62 On 7 June, Associate Professor Mendelson saw Ms Francis again. The defendant’s solicitors gave him 110 pages of documents.[34] As with his earlier report, this report is detailed. It shows the work of a careful practitioner. He believed he had a good rapport with her. She told him of the IVF Program. In his discussion of a report of Ms Joanne McDonald, he was aware of her suggestion that some of Ms Francis’ symptoms were “conversion symptoms” without an organic basis. Psychiatrically, she was not prevented from doing the jobs identified in the 130-Week Vocational Assessment Report or being involved in a vocational rehabilitation program. He maintained his 2014 diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressive Symptoms, but in remission.[35] He thought she might benefit from a pain management program, being “time-limited”. He believed the Disorder will continue, and if her physical symptoms worsen, then her symptoms of Anxiety and Depression will become clinically significant. He saw no evidence of voluntary exaggeration of her symptoms or restrictions. He declined to comment on the issue of involuntary exaggeration, suggesting an examination by a relevant specialist in physical medicine.
[34]I am uncertain whether he had a copy of Associate Professor Brazenor’s first report
[35]Report dated 22 August 2017, DCB 27-40. Associate Professor Mendelson uses the ICD-10 Classification of Mental and Behavioural Problems
63 A radiologist concluded MRI scans in September showed:[36]
“Solid interbody fusion at L5-S1. Early facet joint degeneration at multiple levels. No major disc protrusion, neural compression or spinal stenosis.”
[36]PCB 37
64 Other MRI scans were done in October. They showed no mechanical nerve root impingement with post-operative changes at L5-S1.[37]
[37]PCB 54c-54d
65 On 25 September, Mr O’Brien examined Ms Francis at her solicitor’s request.[38] Although using a single crutch, she could walk without it. However, she limped with her right leg, which was due to a sudden slight flexion of the right knee when weightbearing. She stood on her toes and heels with some difficulty. There was some restriction in movements of the cervical spine, and the right and left shoulders. Movements of the lumbar spine were severely limited.
[38]Report dated 25 September 2017, PCB 102a-102i
66 Mr O’Brien said:[39]
“The patient now presents with severe restriction of lumbar spine movement, associated with what I would consider to be quite variable right lower leg motor dysfunction, and sensory deficit, which certainly cannot be explained by any specific nerve root distribution. Indeed it would appear that investigations have not defined any nerve root compromise, which could explain the current signs, the most recent CT scan, indeed confirming the presence of a sound interbody fusion.
Thus I would conclude that both from the clinical and radiological perspective, there is now no specific definable pathology underlying the ongoing pain generation. I would in fact conclude that the patient now presents with chronic postoperative low back and bilateral leg pain, as the exact pathology is not definable. Indeed, there are signs currently present which would suggest a somewhat complex clinical presentation, the overall clinical course being influenced by psychosocial factors.”
[39]PCB 102e
67 Nevertheless, the prognosis was poor. As to capacity for work, Mr O’Brien said:[40]
“… on the basis of this patient’s current presentation, I would suggest physically she is incapable of undertaking any form of suitable employment. I do not consider the patient is indeed physically capable of undertaking the employment options identified in the Vocational Assessment Report of April 2016… The patient will remain significantly limited in relationship to her general, social, domestic and recreational activities, and I would consider this will be permanent.”
[40]PCB 102e-102f
68 On 17 October, Ms Francis was videoed again. In the morning, she drove her son to his school in Cranbourne. She then drove to her mother’s home, and then to the Fountain Gate Shopping Centre. She used the crutch to go to the boot. Then, without the crutch, she removed the parts of a double pusher weighing about 9 kilograms, and assembled it. She took the child from her car seat and put her into the pusher. She used the crutch to move to the other side of the car, removed another child and put him into the pusher. This child weighed about 12 kilograms at the time. She pushed the pusher. She did some shopping. At the food court, she lifted the older child from the pusher and onto a seat. On returning to the car, she put both children back into their seats, disassembled the pusher and put its parts into the boot. At home, she carried one child into the house without using the crutch.
69 On 18 and 19 October, further videos were taken.
70 On 20 October and 21 November, Mr Timms saw Ms Francis. On the first date, he was surprised and gratified she had lost more than 100 kilograms in weight. He noted she used a crutch, mainly because her right knee collapses unpredictably. She told him her left leg was normal and she had a limited ability to sit, stand and move around. He noted some sensory changes in the L5 and S1 distributions, some persistent numbness, and occasional pain in the C6 distribution in the right arm. He wanted further MRI scans, which were taken.[41]
[41]The report of these scans appears at the PCB 38-39. These were done at Associate Professor Brazenor’s request.
71 To Mr Timms, the scans showed mild changes throughout the cervical spine, particularly at C4-5, C5-6 and C6-7, which he described as “injuries”. There were some post-operative changes at L5-S1, where he performed the fusion. The spine, there, had healed well, with no malalignment or major neural compression. He saw no need for further surgery with her continuing with maintenance physiotherapy, hydrotherapy and massage. He saw her as incapacitated for all work and this was permanent.
72 In answer to a question posed by the solicitors, Mr Timms described the injuries sustained during the course of her employment as a large central L5-S1 disc protrusion and injuries at C4-5, C5-6 and C6-7.
73 The solicitors gave Mr Timms the reports of Associate Professor Brazenor.[42] Mr Timms said:[43]
“I note Dr Brazenor’s reports and his conclusion. He notes the following:
Ms Francis feigning during her physical examination.
I found Ms Rachel Francis to be compliant throughout all consultations, including examinations, history taking, and treatment. I have been given or provided with no reason to suggest any other alternative notion.”
[42]That would be the reports dated 19 May 2017 and 27 October 2017, but obviously not 24 December 2017.
[43]PCB 54b
74 On 27 October, Mr Rotunno wrote to Ms Francis’s solicitors. He had treated her on and off over three years. At their first meeting, she told Mr Rotunno of her “spinal stroke”. He found she had severe weakness throughout the right side of her body and wondered whether she had suffered a genuine stroke. Over the years, there has been improvement in her strength and muscle control, even though Ms Francis does not think so:[44]
“Rachel is now able to weight bare (sic) on her right leg and maintain balance if her muscles are not fatigued. She is able to perform lifting, pushing and pulling exercises in standing postures without increased pain. Rachel can fatigue very quickly while exercising and losses a lot of muscular control, especially in her right leg. At this point she needs to rest or risks injuring herself.”
[44]PCB 58
75 Ms Francis has periods of improvement and periods of decline. Overall, there had been no general improvement or decline and this would continue for the foreseeable future.
76 Ms Francis has no capacity to do work involving lifting, twisting, pushing, pulling, prolonged sitting or standing, or walking more than twenty minutes. She could not do her pre-injury duties as these require lifting, twisting and bending. All of this is permanent. As to the capacity to do suitable employment, Mr Rotunno’s view is intriguing:
“I believe Rachel is capable of part time work in an environment where she can regularly change postures and have breaks when needed. The problem arises that she would not be a reliable employee due to the fact she can have bad days of increased pain and have little to no work capacity. I am unsure of different types of employment opportunities that will give Rachel the flexibility that she needs. I do not see any change to this in the foreseeable future.”[45]
[45]PCB 59
77 Of six job opportunities, Mr Rotunno saw five as unsuitable. The one that was physically suitable requires standing from a seated position every twenty minutes and permit regular days of missed work due to increased pain.
78 Mr Rotunno was given Associate Professor Brazenor’s first report and commented:[46]
“Dr Brazenor states that Rachel’s ‘history of disability is in many aspects quite implausible’. Stating that weakness in L5 innervated muscles in the right leg could date from previous disk prolapse as seen in an MRI from the 15th of May 2011. The initial incident occurred prior to the mentioned MRI so I cannot see how Dr Brazenor can claim that the disk prolapse occurred from a previous injury, if that is what he is trying to convey.
I do not agree with Dr Brazenor’s claims that Rachel is feigning the anaesthesia or analgesia or the weakness in her legs nor the right knee unlocking with every step. Rachel will often show signs of weakness in her legs, especially her right leg, and this weakness is clearly seen to increase as she fatigues with the exercise program. I will often use Rachel’s gait as an assessment of how fatigued she is feeling and how I change the dose of exercise throughout an appointment. I do not believe she could be feigning these symptoms.
I agree with Dr Brazenor that Rachel’s allegations that she has not improved her health in the past three years is not accurate. I have previously mentioned Rachel’s improvements in strength and physical function over the past three years but Rachel’s self perception has not changed with her improved health. I cannot comment on why this is but I speculate it may be related to her ongoing depression.”
(sic)
[46]PCB 60
79 After 19 October, Ms Francis flew to America for a holiday, staying about three weeks. They travelled in a hired recreational vehicle (“RV”):[47] Ms Francis stated:
“… we actually hired an RV because I can’t sit for too long, so hotel to hotel wasn’t going to work, so we hired an RV so I could lie down at any time we’d pull over and stop.”
[47]Transcript (“T”) 55
80 On 22, 24 and 28 November, more videos were taken of Ms Francis.
81 On 29 November, Dr Nigel Strauss saw Ms Francis again.[48] For the examination, her solicitors gave him more documents, including reports of Mr Timms, Mr Tang, Mr Brearley and Dr Middleton, and a “series of investigation reports”. Interestingly, he was given Mr Rotunno’s October 2017 report, in which the latter comments on Associate Professor Brazenor’s assertion of feigning. Plainly, Dr Strauss developed a good relationship with Ms Francis, for she told him a number of things, including the conception of the two youngest children through the IVF Program.
[48]Report dated 29 November 2017, PCB 69a-69j
82 Ms Francis was marginally better than when Dr Strauss saw her in 2015. He assumed the reality of her physical symptoms. He still diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. It was mild. He reiterated that none of her physical symptoms were due to her psychological state. There was no incapacity for work due to her psychological state. Her psychological prognosis depended on her physical state. If the latter improved, so may the former.
83 On 5 December, Dr Bhargava wrote to the solicitors for Ms Francis.[49] Since 2016, Dr Bhargava had cared for her. He agreed with the comment in Mr Timm’s report dated 20 October 2017 that Ms Francis “remains completely incapacitated currently” and “her condition is largely stabilised”.
[49]PCB 58a
84 In December, Ms Francis flew to New Zealand to celebrate her grandmother’s ninetieth birthday. She stayed there for five to seven days.
2018
85 On 14, 15, 16 and 17 February, Ms Francis was videoed again.
Current state
86 In her third affidavit, Ms Francis says:[50]
“I remain with constant low back pain, that is daily back pain, in particular in my lower back which spreads into my buttocks and down my legs into the toes, particularly in my right leg.”
[50]Plaintiff’s affidavit sworn 28 November 2017 at paragraph [9], PCB 22
87 Ms Francis has good and bad days. She takes Panadeine Forte and Panadol. The daily amounts vary; some days she will take none, other days, eight to ten Panadeine Forte.
88 Ms Francis uses an elbow crutch because of the instability of her legs, mainly the right. She worries about falling. Most of the time when she is away from her home she uses the crutch. She does not use it inside the home.
89 Ms Francis shops, but is conscious of hurting her back. She looks after the house with the help of her mother and her husband. Recently, the defendant paid for a cleaner to help her, working two hours each week. Her husband works full time on a rostered basis. She cares for the children, again with the help of her mother. She takes the two youngest children to her mother’s home for her to look after them. Her mother is of limited help because she too has an injured back. She spends most of her days in the company of her mother.
90 Ms Francis takes her eldest child to and from school. She cooks. She does not clean the home. She sees her exercise physiologist and does an exercise program at home to retain the movement she has. She is restricted in bending, lifting, crouching, walking, sitting and standing. She is not looking for work because she believes no one would employ her.
91 Ms Francis has a laptop computer. She uses the internet. She can type. She uses Facebook on her phone.
92 From her self-assessment, Ms Francis believes she could work as a customer service representative on a good day, but not on a bad one. She could not sit long enough to do the static work of a security alarm monitor. She no longer has her security licence and does not believe she could regain it because she would not pass the physical examination. She does not believe she could work as a stock clerk after learning the nature of its duties, or that of a clerk. Except for the Certificate II in security, et cetera, she has no formal qualifications.
Legal considerations
93 To obtain leave for loss of earnings consequences, Ms Francis must prove, bearing in mind she was under twenty-six years at the date of her injury:
(a)an injury arising out of or in the course of her employment with the defendant. One supposes this is conceded given the acceptance of an entitlement to leave for pain and suffering consequences. If not, then she has proven an injury arising out of or in the course of her employment with the defendant. The injury is damage, including a prolapse, to her L5-S1 disc causing neural compression and, in turn, causing back pain and sciatica;
(b)at the date of hearing, she has a loss of earning capacity of 40 per cent or more;[51]
(c)after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[52]
(d)even with rehabilitation and retraining she will still sustain a permanent loss of 40 per cent or more;[53]
(e)an inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability;[54]
(f)while s134AB(38)(f) and its formulae do not apply in this case, the principles applicable are set out in paragraph 61 of the judgment of Judge O’Neill in Berthelot v Fleetweld Pty Ltd.[55]
[51]Section 134AB(38)(e)(i)
[52]Section 134AB(38)(e)(ii)
[53]Section 134AB(38)(g)
[54]Section 134AB(19)(b)
[55][2015] VCC 1453
Discussion
94 Associate Professor Brazenor is adamant Ms Francis feigned her symptoms and restrictions. In his third report, he gives seven reasons. I have already summarised them. They amount to a strong opinion. I do not accept the criticism that he shows partiality and is acting as an advocate and judge. He has set out certain matters and drawn a conclusion from them. The conclusion is a powerful one, and the reasons behind it need stating strongly.
95 Both Mr Timms and Mr Rotunno disagree with the allegation of feigning. I have quoted what each said. Mr Timms was given no reason to suppose she was feigning. Mr Rotunno goes a step further by using the examples of fatigue and gait. Each has seen her a number of times, Mr Rotunno more often than Mr Timms. They have done so over several years. Despite not being “independent medical examiners”, it is difficult to accept each could be fooled by Ms Francis over that time, or that Mr Timms would have performed the fusion without having completed a proper examination.
96 Apart from disagreeing with the allegation, Mr Timms does not discuss any of the seven factors raised by Associate Professor Brazenor. He may not have been asked. He may have been asked to comment on the allegation of feigning only. It is unlikely he was asked specifically and failed to do so. However, I am left with a reasoned opinion and no response to grounds underlying it. To adopt an expression used in relation to Browne v Dunn,[56] it is like ships passing in the night. It leaves a strong opinion where the burden of proof lies on Ms Francis.
[56](1893) 6 R 67
97 There is some repetition in the seven factors of Associate Professor Brazenor.
98 It cannot be said conclusively that no diagnosis was made of Ms Francis to explain her admissions to a hospital in February and December 2012. The exhibited notes are extensive, but some of them are unreadable. It seems Associate Professor Brazenor did not receive all of the notes contained in the Defendant’s Court Book. Nevertheless, there is no considered report from a medical practitioner from the hospital setting out the results of observations, investigations and diagnosis, if one existed.
99 Ms Francis believes she suffered a “spinal cord stroke” and so did her general practitioner, Dr Bhargava. Presumably, someone at the hospital told her. One can only speculate as to what was actually said. It may have been along the lines, “we think it is a spinal cord stroke”. Where Dr Bhargava got the idea is unknown, unless he accepted unthinkingly what she told him.
100 Mr Timms saw Ms Francis in hospital during her first admission. She had been his patient since the previous year. The previous November, at his instigation, Ms Francis received an epidural injection. In January, he sought permission to perform the fusion. It is unlikely she would feign symptoms in February and yet agree to significant surgery in April.
101 Ms Francis was never asked in cross-examination whether she feigned her symptoms and restrictions. I have ignored that because the plaintiff raises it in the context of describing Associate Professor Brazenor’s opinions as absurd, and as a defence to the criticism of not requiring him for cross-examination.
102 The inconsistent signs on examination by Associate Professor Brazenor and others is not answered. Nor are the results of scans over the years before and after the fusion. One supposes Mr Timms knows the distribution of different nerve roots. Even after the fusion, there is some evidence of an imperfect spine.
103 The overseas trips are unexceptional after hearing Ms Francis’s descriptions and explanations of them.
104 Apparently, Associate Professor Brazenor did not ask Ms Francis why she became pregnant and how she coped. Ms Francis spoke to practitioners about her last two pregnancies. She spoke of suicide and the pain of the last birth. She struck me as a determined person who wanted to have more children despite the state of her back. Many would not. It is not necessarily inconsistent with severe and ongoing pain and disability. It depends on the person.
105 Ms Francis gave evidence before me for just over three hours, part of which involved her viewing films. I was aware of the allegation of feigning from the outset, for both Senior Counsel spoke of Associate Professor Brazenor in their openings. I watched and heard her evidence. From time to time I watched her as she watched the films to see how she reacted. There was nothing in what she said, or in her demeanour, which gave any support to the suggestion that she was feigning then, or earlier. I believed her.
106 I saw sixty-one segments of video covering dates between 21 April 2017 and 15 February 2018. The length of the segments ranged from 4 seconds to 29 minutes and 49 seconds. The total running time of these videos is 123 minutes and 11 seconds. Between 20 October 2012 and 17 February 2018, Ms Francis was watched for a total of 161 hours and 25 minutes over 27 days. Between 20 October 2012 and 14 April 2017, there is 132 minutes and 7 seconds of video. I saw none of that.
107 In seven of the segments of video, I saw Ms Francis limp or grimace, or both. I saw evidence of guarding. Her bending tends to avoid flexing her lower back. In none did I see her doing anything inconsistent with what she says she can do, such as playing with her older children, running, or even walking briskly. A lot of what is shown in the video, Ms Francis spoke of in her first affidavit.[57] Her trips are relatively short. Her mother’s home is nearby to her home. Her son’s school is not far away, as are the shopping centres she visits.
[57]See paragraphs [38]-[39]
108 If Ms Francis was feigning, then surely over the period between 2012 and 2018 there would have been something inconsistent. She is a young woman with young children. Without pain and the fusion, one would expect her to be very active. But there is nothing like that.
109 The defendant submits the striking thing about the video footage is the level of activity on consecutive days and rejects Ms Francis’ claim that these were the activities of “good days”. The omission of so much supports her evidence that: these were the activities of “good days”, not “bad days”.
110 Associate Professor Brazenor says feigning. Dr Barton says there is a significant functional overlay. Mr O’Brien says there are signs suggesting a somewhat complex clinical presentation, with the overall clinical course being influenced by “psychosocial factors”. “Functional overlay” is a vague expression. It may mean the person is a malingerer. It may mean a form of hysteria. It may mean something else. If “functional overlay” is vague, “psychosocial” is so vague as to be almost meaningless.
111 Two very experienced psychiatrists saw Ms Francis twice each. Both diagnosed an Adjustment Disorder. Dr Strauss says it is chronic and mild. Associate Professor Mendelson says it is in remission. He saw nothing to say she was voluntarily exaggerating her symptoms and restrictions. Dr Strauss saw no evidence of deliberate over-exaggeration of her problems. When speaking of incapacity for work, Dr Strauss says he does not believe her physical symptomatology is psychologically based. Neither diagnosis explains a “functional overlay” if that expression means something other than malingering.
112 The Diagnostic and Statistical Manual of Mental Disorders: DSM-5 devotes a chapter to somatic symptoms and related disorders.[58] The chapter deals with the Somatic Symptom Disorder, Illness Anxiety Disorder, Conversion Disorder and others. These psychiatrists do not diagnose any such disorders. They do not record symptoms even hinting at them. Dr Strauss specifically excludes a Pain Disorder, which is a broad, older term for these disorders. Judging from the list of his published works, Associate Professor Mendelson is an expert in these disorders.[59]
[58]Diagnostic and Statistical Manual of Mental Disorders: DSM-5, (5th ed, American Psychiatric Association, USA, 2013). Associate Professor Mendelson uses the ICD-10 Classification of Mental and Behavioural Disorders. I daresay it has a similar classification for somatic disorders.
[59]DCB 40
113 On one view, the opinions of the psychiatrists support Associate Professor Brazenor’s view of feigning, for they exclude the psychological.
114 At the end, based on my view of her, the views of Mr Timms and Mr Rotunno, and the lack of support from the videos and the larger surveillance, I am satisfied that Ms Francis is not feigning or pretending her symptoms and restrictions. She is not malingering. Her complaints of pain are genuine. The source of the pain is organic and not psychological. However, the evidence does not show a “specific definable pathology underlying the ongoing pain generation”, as Mr O’Brien puts it.
115 Associate Professor Brazenor says there is some capacity for work, as does Dr Barton. Mr Timms and Mr O’Brien see none. I do not accept the conclusion of Associate Professor Brazenor of feigning. I do not accept the view of Dr Barton of a functional overlay. Accepting, as I do, the organic origin of Ms Francis’s complaints and restrictions, then I accept the view of Mr Timms, who maintains she is totally incapacitated for work.
116 Ms Francis is severely restricted in what she can do. This is due to pain and the instability of her legs, especially the right. At best, she would be an unreliable employee. There would be times when she could not go to work at all. She is of no value to potential employers. There is no employment to which she is suited, and that is a permanent state of affairs.
117 Notwithstanding this, the Konekt report identified six suitable jobs for Ms Francis:
(a)a customer service representative is unsuitable because it requires frequent sitting, stretching, twisting, climbing, lifting, bending, squatting and crouching. Collectively, she could not do these tasks;
(b)a stock clerk requires certain mental skills. It is unlikely Ms Francis could use them given her difficulties with concentration and memory;
(c)a receiving clerk requires frequent sitting, repetitive movements, bending, squatting or crouching. There will be some lifting. It requires record keeping, organisation and the ability to communicate. There is a qualification or experience needed, which she lacks, and she may not be able to acquire the former;
(d)a paint sales representative requires frequent standing, walking and driving. These are beyond Ms Francis;
(e)with a retail supervisor, Ms Francis’ experience as a delicatessen assistant and shop assistant may amount to the necessary experience to become a supervisor, but the frequent standing or walking would be a barrier for her;
(f)the elements of the jobs of alarm, security or surveillance monitor are largely within her capacity, except for the constant sitting. Ms Francis would need to get up from a seated position so often that it would defeat the purpose of constantly watching a screen.
Conclusion
118 I will give Ms Francis leave to start a proceeding for damages for loss of earning capacity.
119 I will hear the parties on the question of costs.
- - -