Free v Victorian WorkCover Authority
[2019] VCC 171
•27 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05928
| SONJA LOUISE FREE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 February 2019 | |
DATE OF JUDGMENT: | 27 February 2019 | |
CASE MAY BE CITED AS: | Free v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 171 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury – injury to the lumbar spine – pain and suffering damages – whether the plaintiff satisfied the threshold test for serious injury – disentanglement of non-compensable medical condition from consequences of physical injury to the lumbar spine – whether aggravation of pre-existing of lumbar spine condition satisfies the threshold test for serious injury
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Church v Echuca Regional Health [2008] VSCA 153
Judgment: The application for serious injury certificate for pain and suffering damages is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni QC with Mr E Makowski | Arnold Thomas & Becker |
| For the Defendant | Mr D Myers | Lander & Rogers |
HIS HONOUR:
1 The plaintiff brings this application by way of Amended Originating Motion dated 22 November 2018. The plaintiff applies for leave in respect of an aggravation of degenerative changes in her lower spine arising out of and in the course of her employment with Manpower Services (Australia) Pty Ltd and Woolworths Group Limited between 6 May 2014 and 4 October 2015 (“the employer”).
2 The period of time specified in the Originating Motion covers the operation of the Accident Compensation Act 1985 (“the Act”) and the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”). The evidence in this case was focused around an injury to the plaintiff’s back on 4 October 2015. Consequently, the relevant legislative regime is the WIRC Act. The application in respect of the injury which occurred on 4 October 2015, requires the plaintiff to satisfy the requirements of s325 of the WIRC Act.
3 At the commencement of the proceedings, the plaintiff has sought leave to bring proceedings for both pain and suffering damages and loss of earning capacity damages in respect of the injury to her lower back. After some discussions at the commencement of the proceeding on 7 February 2019, Mr Morfuni, for the plaintiff, announced to the Court that his client would not be pursuing leave for economic loss.[1] The hearing proceeded on the basis that the plaintiff was seeking leave to bring proceedings for pain and suffering damages only as a result of the injury to her back. The Court is required to determine the consequences of the work-related injury to the plaintiff’s back to be satisfied in order to give leave to bring proceedings for damages.
[1]Transcript (“T”) 8
4 The following evidence was adduced in the course of the hearing:
·The plaintiff gave evidence and was cross-examined.
·The plaintiff tendered the following documents:
§Exhibit A, the Plaintiff’s Court Book (“PCB”), pages 10-189 inclusive
·The defendant tendered the following documents:
§Exhibit 1, the Defendant’s Court Book (“DCB”), pages 1-40 inclusive
§Exhibit 2, the Berwick Physiotherapy records for 16 to 18 October, 2013
§Exhibit 3, DVDs of surveillance film. The first DVD was for 27 and 28 January 2018. The second DVD was for the date of 25 November 2017. The third DVD was for 10 and 11 April 2017.
5 Mr Myers, on behalf of the defendant, identified the following issues to be decided in this application:
(a) Firstly, the pain suffered by the plaintiff is from a non-compensable sacroiliitis condition, which is not related to an aggravation of her back condition.
(b) Secondly, the plaintiff’s history of back condition to doctors is incorrect. This has two consequences: the first being the credit of the plaintiff; the second consequence is that the efficacy of the medical opinions tendered in this application by the plaintiff are undermined.
(c) Thirdly, that the plaintiff was required to disentangle the lower back symptoms as a result of an aggravation of her spine from the sacroiliitis symptoms and consequences.
(d) The fourth issue is the plaintiff has to establish that the level of aggravation to her lower back injury meets the statutory test. In effect, it is a range case.
The statutory scheme
6 The application is brought under the definition of “serious injury” contained in ss(1) of s325 of the WIRC Act, which requires the plaintiff to prove that she has suffered a permanent serious impairment or loss of body function.
7 The relevant considerations which apply to such an application are as follows:
(a)The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment with Manpower Services (Australia) Pty Ltd and Woolworths Group Limited between 6 May 2014 and 4 October 2015;
(b)The injury and the impairment must be permanent; that is, permanent in the sense that it is likely to last for the foreseeable future;
(c)The plaintiff bears the onus of proof to be determined upon the balance of probabilities;
(d)Sub-section (2)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in a range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being “at least very considerable”;
(e)Sub-section (2)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(f)In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[2] I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the very considerable test contained in ss(2)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[2](2005) 14 VR 622
8 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, disclose my pathway of reasoning in dealing with the evidence and the issues raised by this application.
9 I have read the exhibited material and taken into account the evidence of the plaintiff in this case in making this decision.
The Plaintiff’s background
10 The plaintiff was born in 1982 and is now thirty-six years old.[3] The plaintiff is a married woman and has three children, aged sixteen, fourteen and eight years old.[4]
[3]PCB 11
[4]T71
11 The plaintiff was educated to Year 12 in New South Wales.[5] The plaintiff then completed a hairdressing course. The evidence in this hearing was that the plaintiff had worked as a hairdresser for some three years and in a bakery for six to twelve months.[6] The plaintiff had raised her three children for the rest of the time. The plaintiff commenced her part-time casual work with Manpower Services (Australia) Pty Ltd and Woolworths Group Limited on 6 May 2014.[7]
[5]PCB 11
[6]T71
[7]PCB 11
Injury with the Employer
12 The plaintiff was employed as a picker/packer at Woolworths Group Limited. Her employment was casual work with shifts lasting between four and six hours. The total hours of work were approximately twenty-two hours per week.[8] The plaintiff was injured in an incident which occurred on 4 October 2015. The plaintiff describes the work as being fast-paced and without any rotation of duties during the course of her shift. In her affidavit material, the plaintiff described the incident causing injury to her back as follows:
“Irrespective of the heavy and repetitive nature of the work and the fact that I had some symptoms from time to time in my back, I managed to be able to perform the work up to 4 October 2015. On that particular day at about 1.30am I was working in pick-to-tote attempting to reach out across the back of a pallet to pick up a carton of what I recall to be juice weighing about 5kg, when I suffered severe onset of back pain radiating down my right leg. I was driven by management to the Valley Hospital and a CT scan was performed on 5 October 2015 revealing a disc herniation of my L4/5 disc together with a bulge at L3/4.”[9]
[8]PCB 12
[9]PCB 12-13
13 On 6 October 2015, the plaintiff lodged a Worker’s Injury Claim Form with the defendant. She described her injury in that Claim Form as L3, L4, L5 lower back right leg. The plaintiff described the manner in which the injury occurred as follows:
“I was picking an order when I reached to the back of pallet to move it forward, to open stock. I felt an electric shock in my back and then a pinching feeling and tingling down by right leg.”[10]
[10]DCB 1
14 In that same form, the plaintiff stated that she had not previously had any injury or personal injury claim in relation to back injury.[11]
[11]DCB 1
15 While the application was conducted on the basis of the Amended Originating Motion stating it was in the course of the plaintiff’s employment with the employer, it is clear from this documentation and her history to doctors, that it was a frank incident on 4 October 2015. The defendant accepts that the plaintiff was injured as a result of her work on 4 October 2015.
Chronology of significant back complaints by the Plaintiff prior to injury with the Employer
16 The initial injury to the plaintiff’s back occurred when she was fifteen years old and attending school. She was injured in a netball accident. She described it to Associate Professor Graeme Brazenor in the following terms:
“… She said she leapt up to take the ball and ‘landed wrong’, and in doing so jarred her back. She was at a boarding school at the time and spent a couple of days mainly attending sick bay and having physiotherapy. She cannot remember losing more time off school.”[12]
[12]DCB 33
17 The plaintiff’s evidence is that since that time, she has suffered some ongoing back symptoms from time to time, which had been managed by physiotherapy, stretching and acupuncture.[13]
[13]PCB 11 at paragraph [8]
18 On 7 February 2009, the plaintiff attended Dr Tan at Berwick Healthcare for back pain. The plaintiff had received medications of Voltaren, Tramal and Panadeine Forte at that time, either from Dr Tan or from her general practitioner at Parkview Medical Centre in Narre Warren. The incident precipitating this back pain and back complaints was recorded as lifting chairs and two children.[14]
[14]T35
19 In January 2012, the plaintiff attended upon Dr Katic at the Casey Superclinic. The plaintiff was requesting a referral for an MRI scan to her back. She gave evidence that she had been playing netball at that time.[15]
[15]T36
20 On 2 February 2012, the plaintiff did attend for an MRI scan to her lumbar spine.[16] The conclusion of that MRI scan was as follows:
[16]PCB 167-168
“1. Disc degenerative changes L3/4, L4/5 and most marked at L5/S1. No central canal or neural compressive foraminal stenosis.
2. Mild facet arthrosis L5/S1.”[17]
[17]PCB 168
21 On 16 October 2013, the plaintiff attended upon Berwick Physiotherapy for treatment to her right hip. The plaintiff gave a history of injuring her right hip while doing martial arts. The plaintiff’s evidence was that she had suffered the injury some ten days prior to the attendance at the physiotherapist. She described the injury as being to her right hip. In the history to the physiotherapist given that day, the plaintiff stated that she had no problems with her back lately, but had a long history, and had never walked straight since her back injury fifteen years ago.[18] When the plaintiff was cross-examined about this treatment by the physiotherapist and the history given to the physiotherapist, her evidence was that she could not remember.[19]
[18]Exhibit 2
[19]T31-32
22 The plaintiff attended at the Parkview Clinic on 2 March 2015, stating that she had a fall on 12 February 2015. The plaintiff gave a history that she had attended at the Dandenong Emergency Department and had an MRI scan and x-ray of her right groin. The plaintiff told her general practitioner that the MRI scan showed disc bulging and that she had been given painkillers of Voltaren and Panadeine Forte.
23 The plaintiff subsequently attended the same doctor on 11 March 2015 and 16 March 2015, requesting painkillers for her three discs bulging in the back.[20]
[20]DCB 30
24 The plaintiff did, in fact, attend at the Monash Medical Centre at the Dandenong Emergency Department and had an MRI scan on 22 February 2015. The conclusion of that MRI examination was:
“Minor posterior disc bulge at L3/L4 – L5/S1 but no canal stenosis and no cord compression.”[21]
[21]PCB 169
25 When the plaintiff was asked questions about this attendance at hospital, the plaintiff stated that she had no recollection of a fall, nor attending the Dandenong Emergency Department. She stated that she was on Voltaren and was taking Panadeine Forte at that time.[22] The evidence in this case shows that the plaintiff had far more significant pain and difficulties with her lower back prior to her injury with the employer on 4 October 2015. The plaintiff has experienced considerable periods of pain and some treatment for back complaints since the age of fifteen, when she initially injured her back.
[22]T40
Medical treatment following the injury with the Employer
26 On 4 October 2015, the plaintiff was driven to the Valley Hospital from her place of work.[23] On 5 October 2015, the plaintiff underwent a CT lumbar spine examination. The conclusion of that examination was:
“Mild disc bulge at L3-4 and mild broad based disc herniation at L4-5.”
[23]PCB 12
27 On 11 October 2015, the plaintiff attended on Dr Nenad Vasic at the Casey Superclinic. Dr Vasic took a history from the plaintiff, who denied any history of back pain. He noted that the plaintiff had been attending Narre Warren Physiotherapy for sports injuries before this injury. At that time, Dr Vasic prescribed Panadeine Forte and Diazepam.[24]
[24]PCB 86
28 The plaintiff then attended upon Dr Thomas Shashian, at the Berwick Healthcare clinic. The first consultation was on 6 November 2015. Dr Shashian continued to treat the plaintiff from late 2015 into early 2016. He prescribed analgesia for pain control and recommended hydrotherapy, acupuncture and physiotherapy treatment.
29 The plaintiff had been receiving physiotherapy treatment from Berwick Physiotherapy by Laura Canning in October 2015.[25]
[25]PCB 38
30 The plaintiff attended for an MRI examination at the referral of Dr Denise Lin from Berwick Healthcare on 9 April 2016. The summary of the examination was as follows:
“… High grade acute on chronic bilateral sacroiliitis.
Chronic degenerative lumbar disc disease. No focally compressive disc prolapse.”[26]
[26]PCB 172
31 The plaintiff then attended upon Dr Shashian on 18 April 2016. At that stage, the plaintiff was being prescribed Meloxicam, Lyrica, Mersyndol and Zoloft.[27]
[27]PCB 71
32 The plaintiff was referred to Dr Ales Aliashkevich, neurosurgeon, by Dr Shashian. The plaintiff was also referred to Dr Simon McCallum, a pain specialist. Dr McCallum referred the plaintiff to rheumatologist, Dr Marie Feletar. Dr Feletar saw the plaintiff on 7 August 2017.[28] Dr Feletar continued to treat the plaintiff up until the middle of 2018. The plaintiff has not returned for treatment after the last appointment on 4 June 2018.
[28]PCB 45
33 The plaintiff is currently attending physiotherapists and a general practitioner, Dr Kovzlovski, who is a general practitioner at Berwick Healthcare. Dr Kovzlovski, in his last report dated 7 January 2019, states that the plaintiff is on over-the-counter analgesic medication for her pain relief.[29]
[29]PCB 98
34 The plaintiff has had numerous radiological examinations since the injury to her back on 4 October 2015. They are as follows:
(a) CT scan to the lumbar spine on 5 October 2015;[30]
[30]PCB 170
(b) MRI scan of the lumbar spine on 9 April 2016;[31]
[31]PCB 172
(c)Nerve conduction study on 13 April 2016.[32] The conclusion of that study was that –
[32]PCB 174
“… there is no electrophysiological evidence for an underlying L3/4/5 radiculopathy or lower limb sensorimotor polyneuropathy.”
(d)Weight-bearing MRI scan on 11 July 2016.[33] The conclusion on that occasion was:
[33]PCB 176
“… Minor disc abnormality is noted within the lumbar spine as described. There is minimal contact of the traversing left L5 nerve root due to left paracentral disc. This does not result in a significant nerve root compression. Nerve root contact is noted on the weightbearing examination and not seen on the supine study.”
(e)On 11 July 2016, the plaintiff underwent a bone scan.[34] The conclusion of that bone scan was as follows:
[34]PCB 177
“At most mild left sacroiliitis. No scintigraphic evidence of major degenerative arthropathy or facet involvement in the lumbar spine.”
(f)On 28 February 2017, the plaintiff underwent a CT-guided left sacroiliac joint injection under the hands of Dr Simon McCallum;[35]
[35]PCB 178
(g)On 27 April 2017, the plaintiff underwent an MRI scan of the pelvis and left hip.[36] The conclusion of that report was:
[36]PCB 179-180
“… Bilateral sacro-iliitis characterised by erosive changes. Moderate peri-articular bone marrow oedema on the left in keeping with acute changes. Given the bilateral nature, a seronegative spondyloarthropathy such as ankylosing spondylitis is most likely.
No hip joint arthropathy or labral tear.
Very low grade focal muscle oedema involving the superficial fibres of anterior gluteus medius likely reflects muscle contusion or low grade strain.”
(h)On 4 May 2017, the plaintiff underwent an MRI scan of her pelvis and left hip.[37] The conclusion was:
“… Bilateral sacro-iliitis characterised by erosive changes. Moderate per-articular bone marrow oedema on the left in keeping with acute changes. Given the bilateral nature, a seronegative spondyloarthropathy such as ankylosing spondylitis is most likely.
No hip joint arthropathy or labral tear.
Very low grade focal muscle oedema involving the superficial fibres of anterior gluteus medius likely reflects muscle contusion or low grade strain.”
(i)And, finally, on 7 August 2017,[38] the plaintiff had an x-ray of the sacroiliac joints in the lumbar spine. The conclusion was bilateral Grade 3 sacroiliitis.
[37]PCB 182
[38]PCB 183
Medical opinions
The Plaintiff’s doctors
35 The starting point in assessing any medical opinions is the history given by the patient to the doctor. In this case, the plaintiff has consistently given an incorrect history of her prior back injury and symptoms leading up to the time of the accident at the workplace on 4 October 2015. The incorrect histories given by the plaintiff to the doctors are as follows:
(i) Dr Thomas Shashian
36 Dr Shashian recorded, in his notes:
“No known, suspected or diagnosed previous Lumbar, or sacroiliac dysfunction/injury.”[39]
[39]PCB 74
37 In her evidence, the plaintiff agreed that the general practitioner did not have a history of prior lumbar dysfunction or injury prior to him referring her to a neurosurgeon, Dr Aliashkevich.[40]
[40]T19, L24
(ii) Dr Ales Aliashkevich, neurosurgeon
38 Dr Aliashkevich recorded the following history:
“She was completely pain free prior to commencing her employment.”[41]
[41]PCB 34
39 In her evidence, the plaintiff agreed that she had not told Dr Aliashkevich of any of her old problems that she had with her back.[42]
[42]T20, L3-4
(iii) Dr Simon McCallum
40 Dr McCallum has recorded that the plaintiff had a workplace injury on 4 October 2015, lifting heavy boxes. She had no problems before this with chronic pain.[43] The plaintiff, in her evidence, stated that she had told Dr McCallum that she had had a netball injury when she was a teenager. She went on to say that she had no problems since that time.[44]
[43]PCB 60
[44]T20, L18-23
(iv) Dr Nenad Vasic
41 Dr Vasic recorded a history as follows:
“Denies … [history] of back pain.”[45]
[45]PCB 86
42 The plaintiff denied giving this history to Dr Vasic.[46]
[46]T21
(v) Dr Joseph Slesenger, specialist occupational physician
43 The plaintiff told Dr Slesenger that she had one episode of lower back pain in 2015, for which she underwent a CT scan. The symptoms were short-lived and she had no long-term lumbar spinal impairment.[47] In a later report, Dr Slesenger noted that the plaintiff gave her history as follows:
“Mrs Free advised she had an episode of lower back pain at the age of 16, related to sports activities and she has also had back pain associated with pregnancy; however, these episodes have been short-lived.”[48]
[47]PCB 133
[48]PCB 142
44 While there was a change in her histories to Dr Slesenger, they were still inaccurate;
(vi) Mr Paul D’Urso, neurosurgeon
45 Mr D’Urso recorded the plaintiff giving a history of her injury at work as follows:
“… She went to reach for stock, the pallet moved and she fell awkwardly over a box of juice. Sonja stated she immediately developed back pain and paresthesia of both legs, particularly on the left side, associated with weakness … .”
46 This history of the accident and the manner in which it occurred is clearly incorrect. On the basis of the plaintiff’s history, Mr D’Urso formed the opinion that the symptoms in the plaintiff’s lower back came on as a result of the injury on 4 October 2015.
47 In his last report dated 6 February 2019, Mr D’Urso corrected the history in relation to the accident, itself, noting that the severe onset of back pain was radiating down the plaintiff’s right leg. This history was consistent with her Claim Form.
(vii) Mr David Brownbill, consultant neurosurgeon
48 The plaintiff gave the following history to Mr Brownbill:[49]
“… She had fallen over on several occasions playing sport for example netball and required physiotherapy to her leg and back. ‘The pains would always go away and I did not need ongoing medication’.”
[49]PCB 160
49 The plaintiff went on to state that she also had some back pain during pregnancy to direct questioning regarding a report of an MRI scan of 2012, having been provided, she stated:
“I don’t remember exactly what that was from but I was always able to continue with my full activities including sport.”
50 The history to Mr Brownbill was not a full and accurate history in respect of medications and ongoing flare-ups of pain to the plaintiff’s back.
(viii) Dr Marie Feletar, rheumatologist
51 The plaintiff was sent to Dr Feletar by Dr Simon McCallum. This referral was for treatment and diagnosis of the plaintiff’s ongoing conditions.
52 Dr Feletar took a history that prior to the injury in 2015, the plaintiff said she did not have any back pain. In her evidence, the plaintiff accepted that she told Dr Feletar that she did not have any back pain prior to the injury in October 2015. The plaintiff then went on to explain that she had muscle soreness from the netball injury when she was young and that it was from time to time.[50]
[50]T25 and 26
(ix) Mr Michael Shannon, orthopaedic surgeon
53 The plaintiff was assessed by Mr Shannon on behalf of the defendant’s insurer. The plaintiff stated that she had no previous back injury.[51] When the plaintiff was challenged about this issue in her evidence, the plaintiff stated that she would have told Mr Shannon about the netball.[52]
[51]PCB 186
[52]T30
(x) Dr Wilson Chong, pre-employment assessor
54 In a history given to the pre-employment assessor, the plaintiff, in answer to the question:
“DO YOU CURRENTLY OR HAVE YOU EVER, SUFFERED FROM Back pain, back injury or sciatica?”
answered:
“NO.”
(xi) Justin Moar, Physiotherapist
55 The plaintiff gave a history to Mr Moar as follows:
“… I noted that prior to her workplace injury she did not have any significant past history of low back pain.”[53]
[53]PCB 124
(xii) Associate Professor Anthony Buzzard, general surgeon
56 Professor Buzzard examined the plaintiff on behalf of the defendant. The plaintiff gave him a history that she had never previously had numbness and tingling and she said she had never previously had back pain.[54]
[54]DCB 4
57 On a second occasion, when the plaintiff was assessed by Professor Buzzard, she stated that she had not had any trouble before then (the accident of 4 October 2015).[55]
[55]DCB 17
58 The consistent theme of history to all of these doctors is that the history is incorrect. This undermines each of the medical opinions given by these doctors, as they are then only relying upon the radiological evidence they have been given to assess, combined with their own examinations and observations of the plaintiff.
General practitioners’ opinions
Dr Nenad Vasic
59 Dr Vasic prepared a report dated 11 October 2015. Dr Vasic saw the plaintiff on one occasion, according to her records, on 11 October 2015. He referred the plaintiff to physiotherapy treatment. He also prescribed the plaintiff Diazepam and Panadeine Forte. He diagnosed L3-L4 and L4-L5 bulging discs.[56] Dr Vasic’s report is very brief and now over three years old and of little assistance to the court.
[56]PCB 76
Dr Thomas Shashian
60 The plaintiff tendered a total of nine reports from Dr Shashian. The most relevant reports are dated 18 May 2017 and 4 August 2017. Dr Shashian noted that he first saw the plaintiff on 6 November 2015, she was reporting a workplace injury to her back. He took a history from the plaintiff that up until the point of the accident she was relatively asymptomatic in regards to any back and, in particular, lumbar spine complaints. Dr Shashian stated as follows:
“Mrs Sonja Free had ongoing reviews with Specialists which also agreed with the findings that this back injury was consistent with the mechanical forces described to us during her work place injury and that this was an acute Sacroiliitis with the mechanical forces described to us during her work place injury and that this was an acute Sacroiliitis with an exacerbation of her possible chronic Lumbar disc prolapse. A subsequent MRI has also shown evidence of Ankylosing spondylitis and confirmed ongoing sacroiliitis together with the presence of Lumbar disc disease. The specialist has arranged interventional procedures which aimed at reducing her pain and directly treating her Sacroiliitis.
… I am pleased with the improvement that Sonja has made over the last few months but she is still troubled by episodes of moderate to severe pain from her lumbar spine issues and from what now has become a chronic sacroiliitis and an Ankylosing spondylitis.”[57]
[57]PCB 82-83
61 In his last report, dated 4 August 2017, Dr Shashian was referring the plaintiff to physiotherapy treatment for her “acute on chronic sacroiliitis & ankylosing spondylitis seeking physiotherapy and ‘wet therapy’ rehab”.[58]
[58]PCB 84
Dr Dominic Rillstone
62 Dr Rillstone prepared a report for the plaintiff’s solicitors, dated 21 November 2018. Dr Rillstone noted as follows:
“… The relationship between her back injury and her work appears clearly connected. However she has had significant history of back injury in the past reported as 2007 and chronic recurrent back pain recorded on 21 January 2012. So any ongoing symptoms must be interpreted in this context.”[59]
[59]PCB 114
63 The plaintiff had not attended at the Casey Superclinic for some two-and-a-half years and Dr Rillstone was unable to give any opinion of the plaintiff’s condition up to date, as at November 2018.
Dr Denise Lin
64 Dr Lin prepared a report dated 15 April 2016. I note that Dr Lin was referring to matters outside the time of the course of employment set out in the Amended Originating Motion. This report was prepared shortly before the plaintiff resigned from her employment. Dr Lin noted that the return-to-work duties that were offered to the plaintiff by the employer were unsuitable and they were then responsible for a flare-up of the plaintiff’s symptoms.[60]
[60]PCB 52
Dr Chris Kozlovski
65 Dr Kozlovski is the plaintiff’s current general practitioner. He prepared two reports dated 21 May 2018 and 7 January 2019.
66 In his first report, Dr Kozlovski diagnosed the plaintiff with four separate diagnoses.
(i)lumbar spine soft-tissue injury with bilateral lumbar radiculopathy and sciatica leg pain;
(ii)bilateral sacroiliitis (combination of traumatic, mechanical and osteoarthritis);
(iii)chronic lumbar L4/L5-S1 degenerative disc disease; and
(iv)Adjustment Disorder with Depression (now resolved).
67 Dr Kozlovski noted that the plaintiff had recovered from the injury and Diagnosis No 1.
68 In respect of Diagnosis No 2, Dr Kozlovski noted as follows:
“Diagnoses (sic) No. 2 is due to a mixture of initial traumatic injury to the sacroiliac joint, abnormal mechanical forces secondary to abnormal biomechanics & posturing, and pre-existing lumbar degenerative joint disease (wear & tear).
Given that all Ms Free’s inflammatory markers on her blood tests have come back negative, that she had a poor response to anti-inflammatory medications, and that the rheumatologist did not diagnose her with any rheumatological disorder, then I cannot conclude that she has any coexisting rheumatological medical disorder.”[61]
[61]PCB 91
69 In Dr Kozlovski’s opinion, this diagnosis is directly related to the mechanism of injury which occurred to the plaintiff on 4 October 2015.
70 In his final report dated 7 January 2019, Dr Kovzlovski noted that the plaintiff was having over-the-counter analgesia.[62] His diagnoses in the second report were as follows:
“1. Recurrent Episodes of Acute Lumbar Spine Soft-tissue injury
2. Bilateral Sacroiliitis (combination of traumatic, mechanical, and osteoarthritis)
3. Chronic Lumbar L4/L5/S1 Degenerative Disc Disease.”[63]
[62]PCB 98
[63]PCB 98
71 Dr Kozlovski notes that Diagnosis No 1 has no direct relationship to the plaintiff’s employment with the employer.
72 Dr Kozlovski maintains his opinion in respect of Diagnosis No 2, that it is directly related to the plaintiff’s employment and Diagnosis No 3 was a pre-existing condition.
73 Dr Kozlovski’s opinion is in direct conflict with the treating rheumatologist, Dr Marie Feletar. I accept the evidence of the specialist expert, Dr Feletar over the diagnosis given by Dr Kozlovski, who is the plaintiff’s general practitioner.
Dr Ales Aliashkevich
74 Dr Aliashkevich is a neurosurgeon spinal surgeon. Dr Aliashkevich prepared two reports dated 29 April 2016 and 1 August 2016.
75 Dr Aliashkevich referred the plaintiff to Dr Simon McCallum for intervention in respect of pain management. The proposed course of treatment was for therapeutic sacroiliac joint injections with a possible radio frequency denervation procedure after that. In his final report, Dr Aliashkevich stated that the plaintiff had obtained good symptomatic relief from the medial branch blocks around her sacroiliac region. His opinion was that the plaintiff would not require any surgery to her spine.[64] I note that Dr Aliashkevich had a history that the plaintiff was completely pain free prior to her employment.
[64]PCB 37
Dr Simon McCallum, pain physician
76 The plaintiff relied on five reports prepared by Dr McCallum. The reports were dated 5 September 2016, 29 March 2017, 1 May 2017, 24 May 2017 and 7 August 2017.
77 Dr McCallum had a history from the plaintiff that she had no problems with chronic pain prior to her injury on 4 October 2015.[65] After his initial examination of the plaintiff, Dr McCallum diagnosed the plaintiff as suffering from left-sided sacroiliac joint dysfunction. His recommendation at that time was to proceed with a diagnostic left-sided sacroiliac joint injection of local anaesthetic and a steroid. If the plaintiff had a positive but transient response to this, he would then proceed to radio frequency neurotomies at that level.[66]
[65]PCB 53
[66]PCB 54
78 Dr McCallum performed that procedure on 28 February 2017. The plaintiff had a negative response to the treatment.[67]
[67]PCB 55
79 In that same report, Dr McCallum noted the imaging that had been performed on the plaintiff. He noted there was a mild left-sided increase uptake in the sacroiliac joint on the bone scan. There was also some mild contact of the left L5 nerve on a weight-bearing MRI.[68]
[68]PCB 55
80 In his report dated 1 May 2017, Dr McCallum stated as follows:
“Mrs Free has got left-sided sacroiliac joint dysfunction. I am under the impression she had no problems with the left sacroiliac joint until lifting the boxes. She is depressed. She has got a decreased level of function and will be deconditioned.
She may possibly have a seronegative spondyloarthropathy such as ankylosing spondylitis.”[69]
[69]PCB 58
81 In his report dated 24 May 2017, Dr McCallum stated as follows:
“l think Mrs Free has got left-sided sacroiliac joint dysfunction. She had no problems before her job and l think it is that the heavy lifting has brought this problem upon her. It must be noted that l am not aware of whether she has been diagnosed with [an] anti-inflammatory sacroiliac joint problem. This may be a possibility. l note the consultation letter from Dr Marie Feleter dated 7 August, 2017. l agree that Mrs Free’s pain could be discogenic in origin. lt also could be related to the sacroiliac joint. The timeline is difficult.”[70]
[70]PCB 62
82 In the last report from Dr McCallum, he refers the plaintiff to Dr Marie Feletar. The referral to Dr Feletar was for an investigation into the plaintiff’s condition of spondyloarthropathy and possible ankylosing spondylitis.[71]
[71]PCB 64
83 The plaintiff has not returned to be treated by Dr McCallum since his referral of her to Dr Feletar. Dr McCallum’s opinion is compromised by the fact that the plaintiff had not given him a full history of her prior lower back complaints and symptoms.
Dr Maria Feletar, rheumatologist
84 Dr Feletar prepared four reports dated 7 August 2017, 30 August 2017 and 1 March 2018. The final report was prepared on 4 June 2018. The plaintiff gave a history that she did not have any back pain prior to the injury on 4 October 2015. In her first report, Dr Feletar concluded as follows:
“Her primary problem is pre existing degenerative lumbar spine disease and … an exacerbation of pain at work.
Her MRI appearance does tend to support sacroiliitis. She has a family history of psoriasis and she maybe in the process of developing clinically evident sacroiliitis, but previous reports have nicely outlined the asymptomatic presence of imaging findings of inflammatory joint disease in patients with psoriasis. With her pain strongly linked to her injury it is hard to uncover the absolute time line of the problem. She has significant disc degeneration and that is constitutional and moderately advanced for her age and she probably had an exacerbation at the time of work. According to her pain history though she went back to work with 10 out of 10 pain for another few months doing her pre injury duties.”[72]
[72]PCB 46
85 On 1 March 2018, Dr Feletar prepared a report for the plaintiff’s solicitors. In that report, Dr Feletar stated her opinion as follows:
“Her diagnosis is twofold
1. Clinical history of soft tissue back injury on the background of pre existing degenerative disease. This will be referred to as ‘the injury’.
2. Evidence of sacroiliitis on imaging supportive of an inflammatory spondyloarthritis which is autoimmune in origin and not related to her Workcover claimed injury. It was incidentally identified while undergoing imaging of her spine. Typically this problem would cause an inflammatory pattern of pain usually with waking in the morning feeling markedly stiff and sore and sometimes waking during the night. Typically periods of rest exacerbate the stiffness /pain which is often partially relieved with movement.
2. Diagnosis in relation to Ms Free’s spinal/back injury;
Soft tissue injury of lumbosacral spine in the setting of pre existing degeneration in the lumbar spine with acute onset of lumbar back pain.
The inflammatory sacroiliitis is not related to her Workcover injury.”[73]
[73]PCB 49
86 The final report of 4 June 2018 was prepared by Dr Marie Feletar after the plaintiff had attended at the Dandenong Hospital Emergency Department on 22 May 2018. This attendance at hospital was the cause of an adjournment of this proceeding at an earlier time.
87 In her report of 4 June 2018, Dr Feletar refers to the flare-up of the pain which caused the plaintiff to go to hospital in May 2018.
88 Dr Feletar very clearly states that the condition of sacroiliitis is not related to the plaintiff’s work. The doctor prescribed prednisolone for the plaintiff’s condition. She stated as follows:
“She says that they are fighting this in Court. She is still working as an integration aid. I told her that the sacroiliitis is a different process, it is not a mechanical injury related process and at the moment she doesn’t wish to believe this because she said she is getting told different things by different people. I said that I am obliged to see her in a month after the Prednisolone but she may seek out another rheumatologist.”[74]
[74]PCB 50A
89 I note in her evidence that the plaintiff has not returned to Dr Feletar.
90 I accept Dr Feletar’s opinion that the sacroiliitis condition is not related to the plaintiff’s work and the consequences arising from that condition in relation to pain and stiffness are not consequences relevant in this application.
Dr Joseph Slesenger
91 The plaintiff relied on two reports prepared by Dr Joseph Slesenger dated 17 March 2017 and 1 March 2018. Dr Slesenger is a medico-legal reporter in the speciality of occupational physician. Dr Slesenger was told by the plaintiff that she had one episode of low back pain in 2015 for which she underwent a CT scan. The symptoms were short-lived and she had no long term lumbar spinal impairment.[75] Dr Slesenger noted that on examination the plaintiff demonstrated a restricted range of lumbosacral spinal movements and evidence of left sacroiliac disorder. There was no evidence of radiculopathy on examination.[76] In his first report where he is dealing with the relationship of the injury to the plaintiff’s employment with the employer, Dr Slesenger noted as follows:
“I note the past history of lower back pain. There is some discrepancy with regard to the timing of this episode of symptoms (I note the MRI scan is dated 2012). It may be useful to review the relevant GP/physiotherapy records to address this further. Nevertheless, I note that Ms Free was able to remain in work in a role that had significant manual handling requirements and I am of the opinion that it is unlikely that she had an ongoing significant lower back impairment.”[77]
[75]PCB 133
[76]PCB 136
[77]PCB 137
92 It is difficult to reconcile Dr Slesenger’s comments in relation to history when he had been told there was a CT Scan in 2015 on the plaintiff’s lumbar spine. In fact, the examination of the plaintiff in February 2015 was an MRI examination. There was also, as he correctly notes in his report, an MRI scan performed in 2012.
93 In the first report of Dr Slesenger, he has not received a complete history and I do not accept his opinion based on that faulty history.
94 In his second report, Dr Slesenger has a slightly different history recorded:
“Ms Free advised she had an episode of lower back pain at the age of 16, related to sports activities and she has also had back pain associated with pregnancy; however, these episodes have been short-lived.”[78]
[78]PCB 142
95 Dr Slesenger does not deal with the history relating to the 2012 and the 2015 MRI examinations of the plaintiff’s back. In this report, he refers to the MRI scan of 2012, saying it would require a review and it would be useful to address her general practitioner records to exclude a pre-injury lumbar spinal impairment. He does not do it. Dr Slesenger also does not deal with the diagnosis made by Dr Marie Feletar that the plaintiff suffers from sacroiliitis and ankylosing spondylitis.
Mr Paul D’Urso, neurosurgeon
96 Mr D’Urso prepared three reports dated 7 April 2017, 21 January 2019 and 6 February 2019. As I have noted earlier in these reasons, Mr D’Urso did not have an accurate history from the plaintiff in respect to her prior lumbar spine condition and symptoms. In his report dated 21 January 2019, Mr D’Urso notes that the plaintiff takes Melatonin, four Panadeine Forte per day, and three Voltaren a day to manage her symptoms.[79] I note in the plaintiff’s evidence that she stated she did not take any of these medications other than Melatonin. Mr D’Urso stated his opinion as follows:
“Sonja stated whilst performing physical activity in her workplace, she developed symptoms emanating from her lumbar spine radiating into her left buttock and leg. It would appear that a fall on 4th October 2015, precipitated a significant worsening in symptoms and is likely to have contributed to a worsening of pre-existing degenerative findings in the lumbosacral junction and the sacroiliac joint. Work has significantly aggravated the situation as well as a degree of subsequent disability and incapacity.”[80]
[79]PCB 157
[80]PCB 158
97 In his final paragraph of the report, Mr D’Urso accepts that the plaintiff suffers from sacroiliitis. He noted that the plaintiff should be managed by a multi-disciplinary team including a spinal surgeon, a rheumatologist and a general practitioner.
98 In his final report dated 6 February 2019, Mr D’Urso notes that the plaintiff had given him a different history in respect of the leg involved in the radiated pain as a result of the accident on 4 October 2015. He noted finally that the plaintiff had, on the balance of probabilities, sustained an injury to the L4-5 intervertebral disc on 4 October 2015. Furthermore, he stated that the plaintiff appeared to have an aggravated pre-existing degenerative condition at the L5-S1 disc and the sacroiliac joint on left side in particular.
99 Mr D’Urso does not give an opinion as to the separation of symptoms from sacroiliitis and the aggravation to the spinal condition, as he found it to be. Further, he did not set out the level of aggravation that the plaintiff has suffered in respect of her L4-5 and S1 disc levels. On the basis of Mr D’Urso’s evidence, I am unable to say, on the balance of probabilities, to what extent the plaintiff’s spinal condition has been aggravated as a result of the injury received by her on 4 October 2015.
The Defendant’s doctors
Associate Professor Anthony Buzzard
100 Professor Buzzard prepared five reports dated 23 November 2015, 2 December 2015, 14 December 2015, 3 March 2016, and 16 March 2016. Professor Buzzard was examining the plaintiff on behalf of the defendant to ascertain whether or not she was able to return to work. The plaintiff told Professor Buzzard that she had never previously had back pain prior to the injury the subject of this application.[81] The plaintiff also told Professor Buzzard that she had no other accidents, injuries or illnesses of any sort at any time.[82]
[81]DCB 4
[82]DCB 5
101 In his first report, Professor Buzzard set his conclusions out as follows:
“I think that it’s probable that Sonja Free did suffer from an aggravation of pre-existing low back pathology as a result of her work on 5 October 2015. I am concerned about her foot problems of recent duration. In particular, I was concerned that there may have been a nerve root problem but I can’t find any objective neurological abnormality to support that diagnosis. In other words, I think that there is probably a significant functional problem associated with the presentation.”[83]
[83]DCB 10
102 Professor Buzzard next examined the plaintiff on 2 March 2016. He noted again, the plaintiff’s history that she had not had trouble prior to 5 October 2015.[84] After examining the plaintiff, Professor Buzzard set out his conclusions as follows:
“She does have degenerative disease in the low back region. There is a significant functional problem given the lack of reliability of clinical findings and of historical findings.
I think that she did have an aggravation of pre-existing degenerative disease in the low back region at the time of the stated onset of her symptoms on 4 October 2015.
This is not a new injury it is an aggravation of a previous problem.
Her employment was the causal factor of the aggravation on the history that I have been given.”[85]
[84]DCB 17
[85]DCB 20
103 In that report, Professor Buzzard expressed concern about the reliability of the history given to him by the plaintiff. He then stated as follows:
“I think it is probable that the aggravation has ceased but I can’t be definite about that in view of the lack of reliability of the history and clinical examination findings.”[86]
[86]DCB 21
104 Professor Buzzard finally stated as follows:
“I am again bothered by the apparent lack of reliability on the history I was able to obtain today. You will note that I again questioned her about previous back problems and she denied any. This is at odds with the abundant evidence that you have sent me.”[87]
[87]DCB 22
105 Professor Buzzard also stated that he was concerned about a discrepancy between the plaintiff’s abilities for movement during the course of his clinical examination.
106 In his final report, Professor Buzzard stated that the plaintiff’s presentation relates to her pre-existing problem and not the aggravation of October 2015.[88]
[88]DCB 24
Dr Graeme Brazenor, neurosurgeon
107 Dr Graeme Brazenor prepared two reports dated 20 April 2018 and 1 May 2018. Dr Brazenor was the only medical examiner who had the full and total history of radiological investigations and medical opinions on the plaintiff’s condition, both relating to orthopaedic injury and her sacroiliitis. Dr Brazenor also conducted a full examination of the plaintiff. He noted that the plaintiff denied any episode of a fall and could not think of any significant fall in relation to the incident in February 2015.[89]
[89]DCB 33
108 Dr Brazenor made the following comment in his report about the plaintiff’s medication:
“”At present her medications are peculiar. She takes two Panadeine Forte some days but not others (which is usual); but in addition to this she takes melatonin, Ourvail [scil Oruvail] and Mersyndol tablets. She has been told to limit the Mersyndol tablets to no more than four per week, which is curious. She also uses Voltaren gel. Dr Ali Mehr has been the prescriber of these drugs.”[90]
[90]DCB 35
109 Dr Brazenor conducted a physical examination of the plaintiff. At the end of the examination, Dr Brazenor stated as follows:
“At the end of supine examination I offered my hand to help her off the couch and she elected to sit up precipitately to 90o of lumbosacral flexion on the couch, clearly without discomfort or pain. This was significantly at variance with her allegation of limitation to only 10o of lumbosacral flexion when standing.”[91]
[91]DCB 36
110 After the first examination, Dr Brazenor’s opinion was as follows:
“This lady gives a plausible history of lumbar disc injury on 4 October 2015 in the course of her duties. Some of the treatment she has received (speaking here of the physiotherapy) has been counterproductive.
So far as contemporary status, on the balance of probabilities and judging from what Ms Free told me today and the findings on physical examination, I suspect that she has little or no pain in [the] lumbar spine or left sacroiliac region unless she indulges in unwise bending or twisting at the waist, or slumping in soft chairs (which she says she does not do).”[92]
[92]DCB 36
111 This was Dr Brazenor’s preliminary opinion.
112 Dr Brazenor was then supplied with further radiological investigations relating to the plaintiff. He was provided with an MRI of the lumbosacral spine and pelvis taken on 9 April 2016, an MRI of the left buttock taken on 27 April 2017, and plain x-rays of the lumbosacral spine and sacroiliac joints taken on 7 August 2017.
113 Dr Brazenor stated his final conclusions after taking into account those further radiological examinations combined with the full history of radiological examinations he had in his earlier report and gave the following opinion:
“On the basis of the documents that I have read and made notes on in my report to you dated 20 April 2018, my interview with Ms Free that day, my physical examination of her and my inspection of the radiological images that I have been sent, I have formed the view that on the balance of probabilities no significant spinal injury was incurred on 4 October 2015. If there was a soft injury incurred that day it has long since healed, and the symptoms have crossed side to accord very closely with the known pathology that Ms Free has, which is a chronic inflammation in the left sacroiliac joint.
I have been dealing with patients with lumbosacral and sacroiliac joint disease for 45 years and I have never once encountered anyone who had a sacroiliac joint injured by the sort of simple lifting or twisting injury as described by Ms Free. I therefore conclude that on the overwhelming balance of probabilities Ms Free’s ongoing symptoms on the left side are due to inflammatory sacroiliitis, which is entirely unrelated to her employment.
I reiterate my assessment on 20 April 2018 that so far as contemporary status, judging from what Ms Free told me on 20 April 2018 and the findings on physical examination, I suspect that she has little or no pain in [the] lumbar spine, and possibly not even in the left sacroiliac region unless she indulges in unwise bending or twisting at the waist, or slumping in soft chairs. If Ms Free does have any symptoms as she alleges in that left sacroiliac/buttock region, they are purely from her sacroiliitis, unrelated to her employment.”[93]
[93]DCB 39
114 I find, on the balance of probabilities, that the plaintiff has suffered symptoms in her lower back since the age of fifteen, when she initially hurt her back in a netball accident. The known chronology of these flare-ups of back pain prior to the accident on 4 October 2015 have been set out in these reasons.
115 I accept the opinions of Dr Feletar and Dr Brazenor that the generator of the plaintiff’s pain and symptoms in the lower back are a combination of pre-existing degenerative disease in the plaintiff’s lumbar spine and her rheumatological condition of sacroiliitis. The inflammatory condition of sacroiliitis has no relationship to the plaintiff’s employment with the employer.
116 On the basis of the evidence in this case, the plaintiff has failed to satisfy, on the balance of probabilities, the extent of any aggravation to her pre-existing lumbar degenerative condition which was caused by the injury at work on 4 October 2015. I accept the medical opinions of Professor Buzzard and Dr Brazenor that any flare-up of the spinal condition in October 2015 has now abated and the longstanding degenerative condition in the lumbar spine has continued in its natural course.
117 The overall medical opinions in this case do not support the plaintiff’s application for serious injury to her lumbar spine.
The credit of the Plaintiff
118 The plaintiff consistently gave a history to medical examiners and her own treating doctors that she had no prior back complaints or symptoms between the time of her netball accident when she was fifteen and the time of the industrial accident on 4 October 2015. I have previously detailed all of these incorrect histories in these Reasons for Judgment. I will not repeat them here. The plaintiff has focused on the incident at work on 4 October 2015 and sought to attribute all of her subsequent problems in her lower back and sacroiliac joints to that event.
119 In the course of this proceeding, the plaintiff was shown video surveillance film of her. The first dated video surveillance was 27 January 2018 showing the plaintiff out shopping with her husband and daughter. On 28 January 2018, the video showed the plaintiff standing for an extended period of time watching a basketball game at a basketball stadium. The plaintiff was also shown video of 25 November 2017 showing her smoking and then getting into a car and driving away. She then was shown sitting at a basketball game watching her younger son play. The final video the plaintiff was shown related to 10 and 11 April 2017. On 11 April 2017, there was extensive film shown of the plaintiff walking. In the course of cross-examination, the plaintiff stated she remembered this event particularly. At approximately 11.30am on 11 April 2017, the plaintiff was seen to be sitting on the edging of the footpath. This edging was near the 7‑Eleven store. The plaintiff could then be seen standing straight up from a squat stance on the kerbing. She did this in a fluid and unimpeded manner.
120 The plaintiff was cross-examined about this particular movement made by her, and the following evidence was given:
Q:“And then you got up quite fluidly, from that position; what do you say about that?---
A:I’ve got to get up.
Q:That’s right, but you did it well is what I’m suggesting and then you walked on again?---
A:Well, I’ve got to walk home.”[94]
[94]T66, L10-14
121 In the plaintiff’s evidence prior to been shown the DVD surveillance, she stated that she limped when she walked.[95] It was clear from the DVDs shown of the plaintiff’s movements that she did not limp during the course of those surveillance periods.
[95]T49, L4
122 I am mindful of the warning given to trial judges such as myself from the Court of Appeal in Church v Echuca Regional Health[96] about relying too heavily on very short periods of surveillance to make a finding against the credibility of the plaintiff. It was conceded by the defendant that a total of 70.25 hours of surveillance had been conducted on the plaintiff. It was noted that a total of 2.66 hours of film of the plaintiff was obtained.
[96][2008] VSCA 153; 20 VR 566
123 My observations of the plaintiff whilst on display in the surveillance films was that she moved about in a normal manner without any apparent restriction. She was able to walk without a limp. The plaintiff was able to stand for some considerable time watching a basketball game without any apparent discomfort or difficulty. The plaintiff’s movement from a full squatting position to standing straight up was done without any difficulty. My observations of the plaintiff on the surveillance film is but one of the considerations I have taken into account when assessing the plaintiff’s credit.
124 I note the comment made by Dr Brazenor that after his examination of the plaintiff, he offered her his hand to assist her to get up from the examination table and the plaintiff was able to do so without difficulty. This movement by the plaintiff was at odds with the complaints and findings that Dr Brazenor was making during the course of his examination.
125 In the course of evidence, the plaintiff was asked questions in relation to the history she gave to a physiotherapist in 2013. The plaintiff was asked whether she gave a history to the physiotherapist as follows:
Q:“Really? You don’t remember going there after doing some of that martial arts that you say you used to do?---
A:I went to a physio, yes, but I can’t remember.
Q:Okay. Doing martial arts, doing side kicks, doing standing (off microphone). ‘Getting pain in front and back of the hip region. No problems with back lately but long. Never walked straight since back injury years ago.’ That’s what you told them: ‘Aggravated, twisting leg, moving, rolling over, in and out of the car, bending. Intensity 8 out of 10. 24 hour. Symptoms worsening.”
HISHONOUR:
Q:“Do you remember giving any of that history to the physio?---
A:I remember from netball I did go and see a physio from time to time, yes.
Q:No, what I am asking you is what Mr Myers has just been reading out to you, do you remember telling the physio in Berwick in roughly October 2013 those things? For example: ‘Never walked straight since injuring my back when I was 15’?
A:I can’t remember saying it. It’s such a long time ago. No, I can’t remember saying it.”[97]
[97]T31, L25 – T32, L14
126 A short time after that piece of evidence was given, the plaintiff then stated that she could remember being on crutches in October 2013. These two pieces of evidence clearly indicate that the plaintiff was maintaining a selective memory about what had occurred in October 2013 in relation to the injury arising from her kick boxing.
127 The plaintiff was also cross-examined about the attendance at the Dandenong Emergency Hospital in February 2015 prior to the subject injury of this application. The plaintiff was being cross-examined about a history given to doctors at that time relating to a fall. The plaintiff responded “I have no recollection of a fall in 2015”.[98] This answer, given on the first day of the hearing was at complete odds with an affidavit filed by the plaintiff which was sworn on 29 January 2019 which stated as follows:
“I therefore returned to physiotherapy after starting work with the respondent in 2014. I had a scan in about February 2015. I had a fall at about this time but it was not a forceful fall and did not impact upon my back condition in any significant way.”[99]
[98]T40, L5-6
[99]PCB 22, paragraph 9
128 These two versions of events around early 2015 and her attendance at the Dandenong Hospital at that time are not reconcilable.
129 The plaintiff attended at the Dandenong Hospital Emergency Department on 22 May 2018.[100] The plaintiff attended her rheumatologist, Dr Feletar, on 4 June 2018. When the plaintiff was cross-examined about these matters, the following evidence was given:
[100]PCB 113
Q:“You know when you had a flare-up and you couldn’t come to court in May last year?---
A:Yes.
Q:Did you discuss that flare-up with her, with your - - -?---
A:No.
Q:You never discussed it with her?---
A:No because I hadn’t seen her.
Q:So you didn’t go back and see her after that and discuss that with her?---
A:No.
Q:Are you sure about that?---
A:Yes.
Q:You see, I suggest you did?---
A:In May?
Q:Sorry?---
A:The last episode in May?
Q:Yes?---
A:I didn’t see her after that.
Q:She says that she reviewed you on 4 June 2018, after May. She says: ‘She attended today with a flare-up of back pain that she says has been going on for four weeks and she said she attended hospital. She’s on (indistinct). She looks very stiff and sore, unlike last time when her movements were free so I suspect this is a flare-up of her sacroiliitis. She has more pain on the left. I told her that I can’t ethically claim this consultation under WorkCover because the sacroiliitis issue is not related to WorkCover.’ Are you saying that that conversation never happened?---
A:I can’t remember.
Q:This is June last year with your - - -?---
A:As I said, I have been on a lot of different medications and I am struggling to remember.
Q:‘She says that they are fighting this in court. I told her that the sacroiliitis is a different process, it is not a mechanical injury related process and at the moment she doesn’t wish to believe this because she says she’s getting told different things by different people. I said that I am obliged to see her in a month after the prednisolone but she may seek out another rheumatologist.’ Did you go and see her again regarding the prednisolone? Have you been back to see her after getting that?---
A:No.
Q:Have you been to another rheumatologist?---
A:No.
Q:Are you still taking prednisolone?---
A:No.”[101]
[101]T27, L25 – T28, L31
130 I do not find that the plaintiff has deliberately set out to mislead the Court in relation to her condition and the cause of her condition. Rather, I find that the plaintiff has focussed on the incident of 4 October 2015 and attributed all of her symptoms and problems to that event. The plaintiff has refused to accept any medical opinions that do not coincide with her belief that all her pain and symptom conditions in relation to her lower back and depression arise from that incident on 4 October 2015. I find that the plaintiff is an unreliable historian and source of information in relation to her past and current medical condition and consequences to her arising from the incident on 4 October 2015.
Consequences of the injury on 4 October 2015 to the Plaintiff
131 The plaintiff relied upon her three affidavits sworn 31 July 2017, 7 May 2018 and 29 January 2019 to set out her consequences. She also relied upon an affidavit of her husband sworn on 29 January 2019. A further affidavit was sworn by Kerry Allen, a friend of the plaintiff, which was sworn on 23 January 2019. I have taken into account all of the matters set out in those affidavits.
132 In relation to Ms Allen’s affidavit, she did not know the plaintiff prior to the subject accident of this application.
133 In relation to the affidavit of her husband, Christopher Free, he stated:
“I do not believe the applicant had the spinal pain and problems that she has now.”[102]
[102]PCB 24
134 Mr Free was referring to the incident which occurred in October 2015. The plaintiff’s husband acknowledges that she had experienced pain in her back from time to time prior to her industrial accident. The gravamen of his affidavit goes to the symptomology and the complaints of pain made by the plaintiff since October 2015. The matters deposed to by the plaintiff’s husband are infected with the plaintiff’s focus and concentration of all her complaints being a result of the October 2015 incident. I do not accept that the observations and statements by Christopher Free are based on completely independent sources of information from the plaintiff.
Sleep
135 The plaintiff complains that the pain to her back causes her sleep to be interrupted. I note in the report of Dr Sharon Smith, psychologist, that she attributes sleep disturbance to the plaintiff’s diagnosis of adjustment disorder with depression and anxiety.[103] Of course, in an application such as this, I am to disregard any psychological or psychiatric symptoms for the purposes of assessing this application. For the sake of clarity, on the evidence before me I am not satisfied, on the balance of probabilities, that any psychological condition the plaintiff is suffering has been caused by the industrial accident of 4 October 2015. The plaintiff has failed to disentangle the cause of her sleep interruption from her psychological condition and any alleged physical condition.
[103]PCB 119
Pain
136 On the basis of all the evidence in this case, it is difficult to assess the consequence of pain to the plaintiff arising from the industrial accident on 4 October 2015. I accept that the plaintiff is suffering some pain from her low back and sacroiliac joints. The pain emanating from her low back and sacroiliac joints I find is a result of her sacroiliitis, which is not related to the industrial accident, and the natural progression of her pre-existing degenerative change is to her lower back.
Medication
137 The plaintiff’s general practitioner, Dr Kozlovski, states that the plaintiff is currently having over-the-counter analgesia.[104] In her affidavit dated 29 January 2019, the plaintiff stated that she was continuing to take the medication set out in her affidavit of 7 May 2018.[105] In her affidavit of 7 May 2018, the plaintiff sets out her medication regime as follows:
“… Currently I am taking Panadeine Forte, generally about 6 over the course of a week. …
I also take the anti-inflammatory Or[u]val once a day.
… I take Mersyndol about three times a week in addition to Melatonin 5mg every night for my sleep. … .”[106]
[104]PCB 98
[105]PCB 23
[106]PCB 18
138 In her evidence in re-examination, the plaintiff stated that she was on the following medications:
Q:“But just at the current time, the current doctor is giving you, I say, Panadeine Forte, Voltaren, sometimes Targin, Melatonin?---
A:And Endone as well times two.
Q:And?---
A:Endone.
Q:When you say times two, what do you mean by that?---
A:He’s given me repeat prescription.
Q:Yes, of Endone?---
A:Yes.
Q:Does he tell you anything about which ones not to take together?---
A:Yes, he has, yes.”[107]
[107]T74, L10-18
139 I am unable to reconcile the conflict between the general practitioner’s statement of over-the-counter analgesia and the statements and evidence given by the plaintiff that she is prescribed the medications just referred to.
Activities of daily living
140 The DVD surveillance film shows the plaintiff being able to engage in watching her children play sport, either standing or sitting whilst doing so without any apparent discomfort. The plaintiff is able to go for a long walk for approximately 5 kilometres, on her evidence without any difficulty. She was not limping during the course of that walk. The plaintiff gave evidence that she was able to travel to the United States to accompany her eldest son on a basketball trip. The plaintiff continues to work as a teacher’s aide for 24 hours per week, which was the same period of time approximately that she worked with the employer. The plaintiff continues to be able to do the normal activities of family life.
141 I conclude that the consequences that can be directly attributed to the industrial accident on 4 October 2015 do not satisfy the test of being more than significant or marked and properly be described as at least very considerable.
Conclusion
142 The plaintiff bears the onus of proof in this application. The plaintiff has not satisfied the Court on the balance of probabilities that the accident which occurred at the plaintiff’s employment on 4 October 2015 has resulted in consequences which can be properly described as at least very considerable for her. The plaintiff’s back complaints are longstanding and the plaintiff has failed to establish that the aggravation, if any, caused on 4 October 2015 has resulted in ongoing consequences for the plaintiff. The plaintiff has, unfortunately, the conditions of sacroiliitis and ankylosing spondylitis and these conditions are rheumatological and not related to the plaintiff’s employment.
143 The plaintiff’s application for pain and suffering certificate for consequences to her lower back arising from her employment on or about 4 October 2015 is dismissed.
144 I will hear the parties on costs.
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