Georgiadis v Baptcare Ltd
[2024] VCC 1522
•8 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-02065
| STACEY GEORGIADIS | Plaintiff |
| v | |
| BAPTCARE LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSIKARIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 May 2024 | |
DATE OF JUDGMENT: | 8 October 2024 | |
CASE MAY BE CITED AS: | GEORGIADIS v BAPTCARE LTD | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1522 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Stijepic v One Force Group [2009] VSCA 181; Davidson v TAC [2015] VSCA 12; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Shah v VWA [2021] VSCA 137; Hunter v TAC [2005] VSCA 1; Dressing v Porter [2006] VSCA 215
Judgment: Leave granted to the plaintiff to commence proceedings for pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Galbally & O’Bryan |
| For the Defendant | Ms S De Guio | Minter Ellison |
HER HONOUR:
Introduction
1This is an application for leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff at work on or about 14 July 2016 (“the said date”) and/or due to the work processes during the course of her employment.
2The plaintiff seeks leave to commence proceedings for pain and suffering damages only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
(a) “permanent serious impairment or loss of a body function”
4The body function relied upon in this case is the lumbar spine.
5The relevant legal principles are well known and are not in dispute.
6The impairment of the body function must be permanent.
7The plaintiff bears the overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the plaintiff’s lumbar spine impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11In reaching my conclusions, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Haden Engineering Pty Ltd v McKinnon. [2]
[1] (2005) 14 VR 622
[2] (2010) 31 VR 1
12The plaintiff relied on two affidavits, sworn 21 November 2022 and affirmed 26 April 2024 and an affidavit affirmed by Troy Pennycooke-Morgan, her partner, on 26 April 2024. In addition, both parties relied on medical reports and other material which was tendered in evidence.
13At the hearing, the plaintiff gave evidence and was cross-examined.
14I have read all the tendered material and I will refer to the relevant evidence to the extent necessary in these reasons.
Issues
15The issues for determination are:
(a) Whether the true extent of the consequences flowing from the impairment of body function to the lumbar spine have been sufficiently disentangled from the plaintiff’s neck symptoms;
(b) Whether the consequences from the lumbar spine impairment satisfy the narrative test.
16The defendant concedes that the plaintiff suffered compensable injury on or about 14 July 2016.
Plaintiff’s affidavit evidence
17The plaintiff was born on 28 January 1993 in Melbourne and is currently 31 years of age. She lives with her partner. They have no children. She attained her VCE certificate in 2010 and on completion she undertook further studies, obtaining a Certificate III in aged care and qualifications as a hairdresser.[3]
[3] First Affidavit of Stacey Georgiadis sworn on 21 November 2022, Plaintiff’s Court Book (‘PCB’), 32
18In 2013, the plaintiff commenced full-time casual employment with the defendant, averaging approximately 32 hours per week. Her duties included providing assistance to clients with showering, dressing and other personal care needs, cleaning and shopping. The clients’ needs varied between high and low care, with some clients requiring assistance to stand or otherwise mobilise. Approximately 70% of the plaintiff’s clients had high care needs. Some homes had a hoist and/or stand-up machine to assist with heavy client lifting.[4]
[4] PCB 32-33 [5]
19In the three-months preceding the injury, the plaintiff was attending the home of an 80-year-old client (“the client”) who weighed approximately 90 kilograms. The plaintiff described herself as approximately 167cm tall and, at the time, she weighed approximately 62-65 kilograms. The client required assistance to stand and with transfers and mobilisation.[5]
[5] Ibid [6]
20From early 2016, the plaintiff experienced intermittent episodes of mild low back pain when lifting clients, including the client in May 2016. She reported this to the defendant and requested a stand-up machine be provided which was refused.[6]
[6] Ibid [7]
21On 4 June 2016 the plaintiff attended the Northern Spinal and Sports Injury Clinic for treatment.[7]
[7] Ibid
22On 14 July 2016, the plaintiff sustained injury to her back whilst lifting the client from his wheelchair to a standing position in order to transfer him to a chair. She finished her shift early because of the back pain and drove home.[8]
[8] PCB 33-34 [8]
23On 15 July 2016, the plaintiff attended work at another client’s home but left early due to low back pain and then reported the injury to the defendant. She attended the osteopath that same day, and on 16 July 2016 attended her general practitioner, Dr Vivek Patel.[9]
[9] Ibid 34 [9]
24Dr Patel referred her for a CT scan of the thoracic and lumbar spine for 18 July 2016 and to a physiotherapist. He also prescribed pain and anti-inflammatory medication. Physiotherapy treatment commenced in late July 2016 at Back Focus Physiotherapy in Epping. The plaintiff also did regular hydrotherapy and back exercises at home.[10]
[10] Ibid [10]-[11]
25The plaintiff returned to work in around October 2016, undertaking office-based duties at the defendant’s Bundoora premises for about 32 hours per week. Although she could take breaks as needed, 10-minute walking breaks each hour and a 30-minute lunch break, the plaintiff’s back pain gradually increased throughout most shifts as a result of sitting at her desk.[11]
[11] Ibid [12]-[13]
26In early 2017 the plaintiff experienced the gradual onset of neck pain which she attributed to the poor ergonomic setup of her workstation. The plaintiff reported this to the defendant in early February 2017. An ergonomic assessment of her workstation was arranged by the defendant on 15 May 2017 and although various recommendations were made, they were not implemented.[12]
[12] Ibid [14]
27The plaintiff continued working full-time office duties until late 2017. She then gradually returned to work as a carer for low care clients whilst still undertaking some office-based duties. She progressed to full-time work with low care clients with lifting restrictions whilst retaining some office work duties. She was not able to return to unrestricted pre-injury duties. She was retrenched in August 2021 as the defendant informed her that suitable duties accommodating her functional restrictions could no longer be provided.[13]
[13] PCB 35 [15]
28In late July 2022 she commenced employment with “In Home Assistance” working up to 6 hours per week providing care for a former client of the defendant, who had low care needs and was independent.[14] She ceased work with In Home Assistance in June 2023 as she could not cope with the work because of her lumbar spine injury, although she was also having problems with her neck.[15]
[14] Ibid 39 [35]
[15] Further Affidavit of Stacey Georgiadis affirmed on 26 April 2024, PCB 40 [3]
29She then commenced employment with “In Life” working with an autistic girl between 20 to 30 hours per week. Her client is mostly independent although she is wheelchair bound outdoors. The plaintiff said that she only pushes the wheelchair very occasionally.[16]
[16] Ibid 41 [4]
30She deposed that the back injury prevents her from working more than 30 hours per week.[17]
[17] Ibid [5]
Treatment
31The medical treatment that the plaintiff had undergone includes osteopathy, physiotherapy, acupuncture, dry needling, hydrotherapy, pain management and two spinal injections.
32In April 2017, she commenced seeing Dr Robert McMahon at North Melbourne Osteopathy and in approximately August 2018 she saw Dr Christopher Woodgate at the Melbourne Pain Group on referral from Dr Patel, for advice on pain management for her back and neck symptoms. He referred her to Dorset Rehabilitation Centre in February 2019 for assessment of a pain management program.
33In early 2021, Dr Patel referred her to Mr Patrick Chan who she saw in May 2021. He organised for her to undergo a SPECT-CT bone scan. In May 2021, she saw Dr Debo Gorai, a neurologist who arranged nerve conduction studies. He then referred her to Mr Yagnesh Vellore, neurosurgeon. Mr Vellore referred her to a pain management specialist Dr Stiofan O’Conghaile who she first saw in late 2021. He recommended injections to the low back. She underwent the first injection on 14 February 2022 which provided her with some relief of the referred left leg pain. She underwent a second nerve block injection on 28 March 2022 with no benefit. In April 2022, Dr O’Conghaile referred her to Ms Sarah Lynch, physiotherapist, and Dr Brooke Davis, psychologist, with a view to managing her neck and back pain. Mr Vellore requested approval from the Work Cover insurer for funding for a C5-C6 anterior cervical discectomy and fusion, but liability was rejected.
34She continues to see Dr Patel once a month.[18]
[18] PCB 41 [6]
35She underwent two further injections to the neck performed by Dr O’Conghaile.[19]
[19] Ibid [7]
36She continued to take Nurofen tablets for her back pain. The medication also helped with her neck pain.[20]
[20] Ibid [8]
Consequences
37The plaintiff deposed that she suffers from constant low back pain which ranges in intensity from 3/10 to 7/10. The pain gradually increases when she sits for more than 20 minutes, stands in a static position for more than 10-15 minutes, bends, twists and lifts objects that are not lightweight. The intensity of her back symptoms is unpredictable and can escalate causing muscle spasms which result in severe pain.
38She is reliant on medication to manage her back pain. Initially she used either Panadeine Forte and/or Nurofen but due to concerns of addiction and side effects like nausea, she weaned off Panadeine Forte and now exclusively uses Nurofen. She generally takes Nurofen 2-3 evenings per week to help her sleep at night or during the day if symptoms flare up.[21]
[21] PCB 37 [27]
39The plaintiff has disrupted sleep due to the combination of her neck and back pain. She tries to sleep in a foetal position to relieve pressure and pain in her lower back. She may take Nurofen, use a heat pack, take a hot shower or have her partner massage her back to manage the pain and make her more comfortable.[22]
[22] Ibid [28]
40She is restricted in performing domestic tasks and does them at a slower pace and with some difficulty. Her back pain can increase when doing the dishes and meal preparation. She now purchases pre-packaged meals to reduce the amount of time standing and bending when cooking and cleaning.[23] She requires her partner’s assistance when doing the laundry and when grocery shopping with heavier bags.[24] In her second affidavit, she confirms that she needs assistance from her partner with the shopping because of her back injury.[25]
[23] Ibid 42 [12]
[24] Ibid 37-38 [30]
[25] Ibid 42 [12]
41She deposed that she used to play weekly basketball competitions before her back injury and ceased playing following the incident in July 2016.[26] She resumed playing basketball in about 2019 but has not played since as she could not manage with the low back pain and consequent leg pain.[27]
[26] Ibid 31 [31]
[27] Transcript (‘T’) 42-44
42The plaintiff is restricted in her capacity to engage in social and recreational activities because of her back pain. She cannot enjoy going out for dinners and to bars as her lower back will develop increased pain over time, and this pain is unpredictable.[28] She is unable to attend all her partner’s soccer matches or if she does, she will alternate between sitting, standing and walking when she attends. She cannot stay for the whole game and socialise with other players and their partners.[29]
[28] PCB 38 [33]
[29] Ibid 39 [34]
43She no longer goes for long walks with her Mum because of her back injury and her walking capacity is restricted. If she walks more than 20 to 30 minutes, then her back pain increases. She can walk for longer, but it increases her pain. Her social life is restricted. She no longer goes shopping with her girlfriends. She may occasionally go shopping with her sister locally and out to dinner with her partner every few weeks.[30]
[30] Ibid 38
44The plaintiff’s and her partner’s sex life is also restricted by her back pain, and they have decided to hold off on falling pregnant due to the ongoing use of Nurofen.[31]
[31] Ibid 43
45The plaintiff was unable to return to normal work duties with the defendant. She has a hairdressing qualification but could not return to this work as it would require standing for extended periods and bending.[32] She deposed ceasing to work at In Home Assistance in about June 2023 as that work was too hard on her back.
[32] Ibid 39 [36]
Cross Examination
46The plaintiff was cross-examined in relation to her return to employment following her low back injury. She conceded that she was able to return to work with the defendant with low care clients with restrictions in late 2018, eventually progressing to full-time work. She was able to work with clients that did not require lifting or the use of a hoist and was doing a lot of respite work which involved sitting and keeping the clients company. She was able to remain in that role until duties were no longer available in August 2021. She conceded that there were times when she had to push patients in wheelchairs and if a client was too heavy, she would refuse to work for them. Whilst working at In Home Assistance in 2022, she remained on light duties and conceded there were occasions when she lifted a light walking frame to and from her car. She agreed she was able to perform light cleaning and cooking for clients and drive short distances.
47She was questioned at length in relation to the use of Nurofen and Nurofen plus and whether the Nurofen plus was prescribed for her neck complaint. She accepted that on occasions she was prescribed Nurofen plus for her neck condition.
48She accepted that her neck condition was troubling her greatly in 2023, and that she was receiving treatment at the Austin Hospital with Mr Vellore, to the extent that surgery had been recommended for her neck although it did not proceed as liability for payment had not been accepted. She also readily accepted that she had an injection to the C5/6 and one to the C3/4 level in 2023 and that the pain had not been resolved with the injections. She sought a review from a neurosurgeon in respect of the neck pain as well as consulting Dr O’Conghaile for the management of neck pain. She accepted she had undergone a number of substantial treatments commencing in August 2023 in respect of the neck. She also underwent cervical medial branch blocks on 18 August 2023.
49She accepted that the pain to her neck in combination with the back affected her ability to work. However, she said that the reason she stopped working at In Home Assistance was due to the lifting which affected her back. She disagreed that the lifting she was required to undertake was affected by her neck pain.
50She also conceded in cross examination that her sleep was affected by both her back and neck pain.
51In relation to playing basketball she agreed that she played for the season commencing November 2019 to March 2020. She remembered scoring goals, and the running and exercise was good for her as she had put on weight. Running was good for her at the beginning, and she did not find scoring goals jarring on her back. She was able to play until it became too much for her as a result of her back pain. Her evidence was that during the last game she played, she was unable to continue due to pain to the left side of the back, and decided she could not continue playing. She rejected the defendant’s assertion that she ceased basketball due to ongoing neck pain as the timing coincided with her presenting to her general practitioner in February 2020 for neck symptoms. Her evidence was that she is unable to play basketball because of the constant running and changing in direction as this impacts her low back and causes pain. She was able to shoot hoops in a game room as her neck injury did not prevent her from doing this. However, she could not run up and down the court due to the back pain. She was aware of the limitations in relation to her back and was able to manage symptoms through exercise or lying down, unlike the neck symptoms which she was not able to manage without seeking medical advice.
52In relation to her domestic tasks, she said that cooking at home for herself and her partner was much more onerous than the simple preparation and reheating required for her autistic client. Domestic chores such as changing the sheets caused her neck pain, but the laundry was difficult because of her back, although some days her neck would also present problems. Light shopping was possible, but she would shop online if she needed to drive for long distances or lift heavier objects. Whilst she walked, she was limited in distance and time due to the back injury. She did Pilates but there were times she could not, due to both neck and back pain. Similarly, her social life was affected by neck pain but overall, it was the back pain which had the predominant impact. She experienced pain when seated for lengthy periods and had to make excuses to get up and move around, she often left events early and did not go out frequently. She found this embarrassing. She tried to go out with her partner to dinner once every couple of weeks. She attended her partner’s soccer matches but often did not stay the whole game and left early.
53Driving was impacted by both her neck and back pain.
Lay evidence
54The plaintiff’s partner, Mr Pennycooke-Morgan deposed that since he started seeing the plaintiff about 4 years ago, she frequently complained about her back pain and the restrictions it caused her. She had difficulty sitting for prolonged periods of time and complained of increased pain in her back after she had been sitting for a while.[33]
[33] Affidavit of Troy Pennycooke-Morgan, affirmed on 26 April 2024, PCB 45
55Mr Pennycooke-Morgan further deposed that the plaintiff wakes him up at night complaining of increased back pain, and that this happens about two times a week, but sometimes more often.
56He has noticed that the plaintiff has difficulties with doing household chores such as standing up to wash the dishes at the sink, vacuuming for prolonged time, and carrying heavy shopping bags. He does most of the domestic tasks because of this.[34]
[34] Ibid
57Mr Pennycooke-Morgan plays soccer every Saturday during the season, and he deposed that the plaintiff can only support him for half the match as she cannot sit or stand on the sideline as it aggravates her back pain. The plaintiff also cannot go out to socialise after matches due to back pain.[35]
[35] Ibid 46 [8]
Treating medical practitioners
The plaintiff’s medico-legal reports
Dr Vivek Patel, general practitioner
58Dr Patel has treated the plaintiff since she first consulted him following her injury with physiotherapy, hydrotherapy, non-steroidal anti-inflammatory medication and pain killers. In his report dated 15 March 2022, he noted the plaintiff had chronic lower back pain and only had capacity for suitable employment with restrictions on lifting more than 10kg, avoiding repetitive lower back movements, avoiding pushing and pulling greater than 20kgs, avoiding bending and kneeling, avoiding standing, walking or sitting for more than 30 to 45 minutes and avoiding driving longer than 45 minutes. He did not believe she would return to full pre-injury duties.[36] He has continued to provide her with certificates of capacity in relation to the back injury.
[36] PCB 62
Dr Robert McMahon, osteopath
59Dr McMahon began treating the plaintiff with osteopathy in April 2017 to manage her symptoms with a core strengthening program and exercises as well as assisting her with coping mechanisms and techniques to manage her pain.
Dr Christopher Woodgate, rehabilitation and pain medicine consultant
60In August 2018, the plaintiff was referred to Dr Woodgate by Dr Patel. In his opinion, the plaintiff had persistent low back pain which has now generalised to neck and shoulders following the work injury. He noted in his report dated 30 August 2018 that the back pain still caused the plaintiff significant discomfort and that she was only able to work modified duties and hours. She was unable to lift more than 10kg. Dr Woodgate recommended she be assessed for a pain management program at Dorset Rehabilitation Centre.[37]
[37] Ibid 104-105
61The plaintiff was assessed by the Dorsett Rehabilitation Centre in relation to her back injury on 12 February 2019 with the aim of increasing her work hours and assisting her to engage in full duties and improve her functional movements and manual handling for both work and home duties.
Dr Debo Gorai, neurologist
62Dr Gorai obtained a history of injury and noted her low back pain had become progressively worse and that she had pain radiating down her legs. The cervical spine MRI performed in February 2020 and the lumbar spine MRI performed in March 2021 were both suggestive of radiculopathic patterns to the left.[38] He performed nerve conduction and EMG studies on both right and left upper and lower limbs and confirmed the plaintiff had electrophysiological evidence of a predominant left C5 cervical and left L5 lumbar radiculopathy. He suggested a second opinion from Mr Vellore.[39]
[38] PCB 116
[39] Ibid 121
Mr Patrick Chan, neurosurgeon and spinal surgeon
63Mr Chan reported on 12 May 2021 that the plaintiff described left lower back pain that radiated across the whole lower back, radiated to the bilateral gluteal region into bilateral hamstrings and bilateral calves into the soles and toes. Her symptoms were worse during the days after activities and after moving about. At times it was exacerbated at night.[40]
[40] Ibid 125
64He noted the plaintiff’s MRI of the cervical spine showed mild degenerative changes at C5/6 level with reversal of cervical lordosis. There was no significant neural compression. The MRI of the lumbar spine showed mild degenerative changes at L4/5 without significant neural compression. He arranged for the plaintiff to undergo a SPECT-CT bone scan. On reviewing the bone scan, he noted it did not show any positive uptake and she should be managed conservatively, with “no urgency for neurosurgical intervention”.[41] Given the prolonged nature of her back pain he thought it reasonable that she be referred to a pain specialist for opinion.
[41] Ibid 126
Mr Yagnesh Vellore, neurosurgeon and spinal surgeon
65Mr Vellore first saw the plaintiff on 20 October 2021 in relation to the back complaint. He took a history of injury and noted that she had developed back pain and left sided radicular pain. The nerve conduction studies confirmed a left L5 radiculopathy and the weight bearing MRI demonstrated a bulging at L5/S1 level, coinciding with a left L5 radiculopathy. He recommended epidural injection to be performed by Dr O’Conghaile. He had previously seen her on 9 June 2021, for neck pain and radiculopathy travelling down the left arm. He had noted then that in addition to left-sided radicular pain she had some lower back pain.[42]
[42] PCB 129
66Dr O’Conghaile also performed lumbar medial branch blocks, and the plaintiff was treated with amitriptyline, physiotherapy and psychology sessions.[43] On examination he noted that the plaintiff had decreased straight leg raise bilaterally and had an altered sensation in the left L5 dermatome as well as mild weakness of the left foot. He noted the plaintiff was unable to play basketball, sit or drive for long, could not lift, needed help with grocery shopping and hanging out the washing. He diagnosed damage to the L4/ L5 and S1 segments with facet strain and disc bulging at L5/S1 with chronic L5/S1 radiculopathy. The diagnosis was consistent with the history of injury in 2016. He was of the opinion the condition was permanent.[44]
[43] Ibid
[44] Ibid 130
The defendant’s medico-legal reports
Mr Roy Carey, orthopaedic spine surgeon
67Mr Carey examined the plaintiff for the purposes of undertaking an impairment assessment on 10 May 2022. After reviewing the imaging reports and conducting an examination he concluded the plaintiff had suffered from an aggravation of lower lumbar degenerative change producing back pain and left lower limb symptoms with an absence of radiculopathy. He considered her condition was stable and he assessed her as having had sustained 5% impairment assessed under the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition.[45]
[45] Ibid 139
Dr Umberto Boffa, occupational physician
68Dr Boffa examined the plaintiff and, in his report, dated 1 August 2022 he noted that plaintiff reported left lumbar and lower limb pain after suffering an injury at work on 14 June 2016. The plaintiff indicated that there had been no change in the severity of her low back and left lower limb pain since her injury.[46] He diagnosed left piriformis syndrome with pseudo-sciatica less symptomatic and possibly incidental lumbosacral spondylosis without radiculopathy. He noted that the plaintiff was not fit for pre-injury duties and hours, but she was able to undertake duties that avoided prolonged sitting, driving, standing and walking and, repetitive lifting and carrying more than 5kg commencing with a 4 hour shift five days a week. She was not fit for work as a personal care attendant aged care worker, sales assistant or hospital orderly because of unsuitable prolonged standing and walking, or for a courier role because of unsuitable prolonged driving. He recommended ultrasound-guided corticosteroid injection and an exercise physiologist.[47]
[46] PCB 143
[47] Ibid 144
69In a supplementary report from 21 August 2022, he was asked to comment on a vocational report, which was not tendered into evidence, and he expressed the opinion that the plaintiff was fit for light personal care attendant activities, work as a call centre assistant, disability support worker duties that did not involve manual handling, as well as customer service assistant roles. She was not fit for the work of a pathology delivery driver because of unsuitable prolonged driving nor as an aged care worker because of unsuitable manual handling.[48]
[48] Ibid 146
Dr Graeme Doig, general orthopaedics and trauma
70The plaintiff was seen by Dr Doig on two occasions. On clinical examination, he reported on 5 April 2023 that the plaintiff was restricted in movements and there was evidence of an ongoing L5 radiculopathy with weakness in the myotome and slight reduction in sensation within the appropriate dermatome.[49] In his second report dated 2 April 2024 he noted that the plaintiff continued to complain of left-sided lower back pain with radiation to the left leg. She also had left-sided neck/trapezius muscle pain with associated cervicogenic headaches, reduced sensation on the ulnar border of the left hand and some weakness in the left hand.[50]
[49] Defendant’s Court Book (‘DCB’) 28
[50] DCB 34
71On clinical examination he again found a reduced range of motion and symptoms of mildly positive nerve root tension signs on the left with evidence of ongoing L5 radiculopathy.[51] He diagnosed an intervertebral disc injury in the lumbosacral spine with L5 radiculopathy in the left leg which had improved but failed to fully resolve. He noted her condition had plateaued although her spinal movements had improved since the previous examination. Overall, her condition has stabilised. The plaintiff was able to work 24 hours per week as a support worker for an autistic female who suffered from no physical limitations. She could continue to undertake light domestic activities around the home but had not returned to running or playing basketball.[52]
[51] Ibid 35
[52] Ibid 36
Dr David Barton, consultant occupational physician
72Dr Barton assessed the plaintiff on 27 July 2017 for the purposes of her ongoing medical and weekly payment entitlements. He accepted that the plaintiff had sustained injury and considered that it was some mild soft tissue discomfort from which she had physically recovered.[53] He did not have any X-ray or other investigations when he undertook his review.
[53] PCB 95
Medical Panel opinions
73The first Medical Panel certificate of opinion was provided on 7 February 2018 and the medical questions were in respect of the plaintiff’s ongoing capacity. The Panel concluded that the plaintiff was suffering from a substantially resolved soft tissue injury to the lower back with no evidence of radiculopathy. It also considered that the plaintiff’s injury to be materially contributed to by the accepted lower back injury[54] and she did have an ongoing incapacity for work.[55] In its reasons for opinion, the Panel noted that the plaintiff was unable to undertake her pre-injury duties on a reliable and consistent basis and, in all likelihood, would exacerbate or aggravate her condition if she were to return to her full pre-injury duties. Noting the opinion of Dr Barton, the Panel came to a different conclusion in relation to the plaintiff’s condition and capacity.[56]
[54] DCB 3
[55] Ibid 4
[56] DCB 9-10
74The second certificate of opinion was provided on 14 July 2022 and was for the purposes of assessing the plaintiff’s impairment. The Panel noted in its reasons for opinion that the plaintiff suffered from daily low back pain ever since her lower back injury and that she developed leg pain affecting both legs, worse on the left side, some 2 to 3 years after the initial injury.[57] After conducting an examination and considering the investigations, the Panel diagnosed a persisting lumbar dysfunction in a setting of degenerative lumbar disc disease, relevant to the accepted lower back injury. The Panel noted the electrophysiological evidence but considered that it could not be relied upon to establish a current diagnosis of any lumbar radiculopathy. It also noted that the plaintiff’s medical condition was stable.[58]
[57] Ibid 15
[58] Ibid 17
Issues and submissions
Plaintiff’s submissions
75It was submitted on behalf of the plaintiff that:
(a) The plaintiff suffered a genuine injury to the lumbar spine involving L4/5 and S1 discs, with compression on the S1 nerve root with radiculopathy.
(b) The plaintiff attended throughout 2023 and 2024 with flareups in respect of her back. There was a referral on 21 February 2024 to Mr Vellore in respect of a flareup of neuropathic symptoms in the legs. The plaintiff continued to obtain medical certificates in respect of capacity to the back. The medical evidence of Mr Vellore confirms left-sided radiculopathy.
(c) The plaintiff is a genuine historian.
(d) She is unable to return to her chosen career in aged care and I was referred to Ellis Management Services Pty Ltd v Taylor.[59]
(e) The plaintiff was only 23 when the injury occurred, was 31 at the time the application was heard, and the injuries to the lumbar spine are permanent. The Court should take into account the Court of Appeal’s comments in Stijepic v One Force Group[60] at paragraph 43 and Davidson v TAC[61] at paragraph 50.
(f) The plaintiff suffers from constant pain in her back. She has undergone two cortisone injections into the lumbar spine, has been referred to a neurosurgeon who has considered spinal surgery and the possibility of surgery is a relevant consideration. She has received physiotherapy, osteopathy, continues to see her general practitioner regularly for the back pain and takes regular medication including Nurofen and Nurofen plus for her back pain. The fact that the medication is also for neck pain does not limit the fact that she is experiencing back pain. I was referred to Kelso v Tatiara Meat Co Pty Ltd[62] at paragraph 199 and the plaintiff submitted that eight years after the injury, for her to be still taking regular pain medication is evidence of very considerable consequences.
(g) The back injury consequences impact on her sleep, mobility, performance of household and family duties, recreational activities, sporting activities and social activities. Her sex life has been impacted and capacity for intimacy limited. She has put off having a child because of back pain and the need to take medication.
(h) In terms of disentanglement, Shah v VWA[63] was not relevant as the plaintiff was not seeking to aggregate neck and back injuries. The plaintiff has disaggregated the neck and back injuries. The plaintiff’s back injury occurred before she sustained her neck injury, and she has never recovered from the back injury. The need for medication arose as a result of the back injury.
[59] [2013] VSCA 326
[60] [2009] VSCA 181
[61] [2015] VSCA 12
[62] (2007) 17 VR 592
[63] [2021] VSCA 137
Defendant’s submissions
76The defendant submitted that:
(a) It is difficult to separate the consequences flowing from the impairment of the lumbar spine from the impairment to the cervical spine. The defendant submitted that the consequences were not sufficiently disentangled in accordance with the test in Peak Engineering Pty Ltd v McKenzie.[64]
[64] [2014] VSCA 67
(b) In Shah v VWA the Court of Appeal acknowledged the proposition that if there are separate injuries to different areas of the spine, there is a need to disentangle the consequences arising from the neck and back and identify the pain and suffering consequences along the lines outlined in Peak Engineering.
(c) The plaintiff’s evidence was detrimental to her application from a disentangling perspective. On her own evidence the neck injury was significant and ongoing.
(d) The Medical Panel opinions in 2018 and 2022 pointed to a back injury that was not significant and one that did not satisfy the test, although it was acknowledged that they were obtained for other purposes.
(e) There was a lack of clarity in relation to the treatment that the plaintiff underwent in respect of the back injury alone. Surgery had not been suggested by Mr Vellore.
(f) The plaintiff’s evidence in her second affidavit in relation to consequences, which were said to be only in respect of the back, was unreliable because her assertions were in conflict with her oral evidence and did not sit well with her evidence regarding the contribution in respect of neck pain. The court could only be satisfied of the consequences if there was medical corroboration.
(g) The opinions of Dr Doig and Mr Vellore do not assist in the disentangling exercise. Mr Vellore’s opinion of the consequences only being referable to the back, is artificial and Dr Doig has intertwined the consequences of both the neck and back.
(h) The plaintiff was attending the Northend Medical Centre in 2022 and 2023 complaining of neck pain, notwithstanding her obtaining certificates of capacity in respect of her back condition at the same time. There was no up to date report from the general practitioner and although the plaintiff’s solicitor had provided an explanation as to its absence and no submission was made that an adverse inference ought be made, nevertheless, this led to a gap in the evidence.
(i) There was no report from the treating pain specialist and an adverse inference would be made as there was no explanation for the omission.
(j) To the extent that the consequences could be properly ascertained as arising out of the lumbar spine, those consequences were not sufficient to warrant a grant of pain and suffering. I was referred to Haden Engineering Pty Ltd v McKinnon.
(k) The neck injury is one of significance, causing pain and medical evidence confirms she has received substantial treatment for the neck including making numerous complaints throughout 2022. The reported pain in 2023 centres around the cervical spine rather than the back.
(l) There may be symptoms of some lower back symptoms and discomfort, but they are not serious.
Credit
77The defendant’s counsel in her opening said that the plaintiff’s credit was in issue. She conceded in her closing submission that the plaintiff had on numerous occasions made admissions against interest and this reflected favourably on her credibility.
Findings
78Having had the opportunity of seeing the plaintiff give her evidence I accept her as an honest and genuine witness, and I accept her affidavit evidence and her viva voce evidence as to her pain and suffering consequences and the restrictions she continues to face as a result of her lumbar spine injury. She made significant concessions against interest which in my view enhanced her credibility considerably.
79I accept that the radiology, investigations and medical reports confirm that the plaintiff sustained a lumbar spine injury. I also accept that she has suffered an L5 radiculopathy in the left leg. I accept the diagnosis of the plaintiff’s treating specialist Mr Vellore, who has developed a therapeutic relationship with her. He relied on the weight bearing MRI undertaken on 8 November 2021 as well as the nerve conduction study which confirmed electrophysiological evidence at the left L5 level. Dr Gorai and Dr Doig agree with the diagnosis. Dr O’Conghaile also detected an altered sensation in the left L5 dermatome on examination. I note that the Medial Panel did not make a finding of radiculopathy as their examination findings along with their review of the investigations did not support a current diagnosis of radiculopathy. Both Dr Doig’s and Mr Vellore’s opinions have overtaken this Medical Panel opinion, and I prefer their conclusions especially as Dr Doig examined the plaintiff twice and Mr Vellore is the treating specialist.
80I find that there is a body of medical opinion which confirms that there are impairment consequences solely arising from the lumbar spine injury which have had a significant deleterious effect on the plaintiff’s capacity. Moreover, the plaintiff has been deprived of her ability to pursue her chosen career in aged care. After leaving school she trained in this field and obtained work for which she was suitably qualified. She has been unable to return to her pre-injury employment because of the impact and consequences flowing from the lumbar spine injury. She left In Home Assistance because she was unable to perform her work due to her back injury.
81In this regard I note the opinion of Dr Patel with respect to the restrictions on the plaintiff’s capacity for suitable employment as a result of chronic low back pain, namely she must not lift more than 10kg, she must avoid repetitive lower back movements, avoid pushing or pulling greater than 20kg, avoid bending and kneeling, avoid standing/walking/sitting for greater than 30 to 45 minutes and avoid long drives of greater than 45 minutes. He has continued to certify these restrictions.
82Dr Woodgate confirmed when he examined the plaintiff in August 2018 that the plaintiff still had significant discomfort as a result of her back, and she was only able to work modified duties and hours. The assessment from Dorset Rehabilitation Centre on 12 February 2019 was in respect of the lower back injury, and the occupational therapy assessment confirmed her driving capacity was only up to 30 minutes. Her incapacity was such that her lower back pain was aggravated after 30 minutes, static standing produced lower back pain, and her lifting capacity was as certified her certificate of capacity namely 10kg.
83Mr Vellore in his report dated 21 February 2024, confining his opinion to the plaintiff’s lumbar spine injury confirmed that the plaintiff was employed working light duties and restricted hours. Dr Boffa expressed the opinion that the plaintiff is not fit for pre-injury duties and hours and only fit for duties that avoided prolonged sitting, driving, standing and walking, and repetitive lifting and carrying more than 5kg with four hour shifts five days per week. He confirmed she was not fit for personal care attendant aged care work, sales assistant work or hospital orderly roles. Whilst in his supplementary opinion he confirmed the plaintiff had a capacity for light personal care attendant activities based on a review of a vocational assessment report that was not tendered in evidence, she was unsuited to do delivery driver work and aged care work due to the manual handling requirements.
84Dr Doig confirmed in his initial assessment that the plaintiff had the capacity for lifting less than 10kg, he imposed restrictions on pushing and pulling with limited bending and twisting through the spine. He also expressed the opinion that the plaintiff would require breaks from prolonged sitting and driving. If she were to undertake these activities without restriction, she would have difficulty undertaking them without symptomatically exacerbating her back condition. In his second report he confirmed that the plaintiff was working 24 hours per week looking after an autistic young lady with no physical limitations.
85The plaintiff has undergone significant treatment in the form of cortisone injections to the back and has been referred to two neurosurgeons in relation to treatment in respect of the back. Dr Chan thought there was “no urgency” for neurosurgical intervention and suggested conservative management when he saw her. This in my view leaves open the prospect of surgical intervention in respect of the back. The possibility of surgery is a relevant consideration in determining whether the back injury meets the threshold. I note that the plaintiff attended her general practitioner on 13 October 2023 with neuropathic pain down her legs and on 14 December 2023 requested a referral to Mr Vellore. Mr Vellore commented in his report dated 21 February 2024 that the plaintiff presented with altered sensation in the left L5 dermatome and there was mild weakness of the “left foot to 4+/5”. Notwithstanding the extensive complaints and treatment with Dr O’Conghaile with respect to the neck, I accept that the plaintiff had on going back pain for which she had treatment during this time and that the back injury impacted on her ability to perform a full range of duties that she was capable of before the injury.
86I accept that the plaintiff is a young woman who has been consistent with respect to the complaints in respect of her back. She has been consistent that she cannot return to her pre-injury employment and has overwhelming medical support in this regard. She has continued to obtain certificates of capacity from her general practitioner in relation to the back, and this has not changed since Dr Patel’s report dated 15 March 2022. I accept that she continues to consult Dr Patel in respect of her back. I do not accept that there is a gap in the evidence. To the contrary, there is medical support in respect of the impact on the plaintiff’s back on her ability to engage in work in her chosen field. She confirmed in re-examination that she loved her work in aged care. I accept that this career is now lost to her. While I am required to assess whether the injury to the low back is serious by reference to the plaintiff’s pain and suffering consequences, her loss of ability to engage in work has relevance to determining pain and suffering consequences. Loss of ability to undertake previously enjoyed activities, including work, and frustration at that loss, are relevant to assessing pain and suffering.[65]
[65] Haden Engineering Pty Ltd v McKinnon at [15]
87In addition, the fact that the plaintiff has lost her career in aged care is evidence of the severity of the injury.[66] The fact that the plaintiff has managed to return to alternative employment does not prevent a finding that the plaintiff has sustained a serious injury. It is merely one matter to consider.[67]
[66] Hunter v TAC [2005] VSCA 1, at [34]
[67] Haden Engineering Pty Ltd v McKinnon
88I accept that the plaintiff continues to take medication. The fact that it assists with her neck as well as her back pain does not detract from the fact that she takes the medication to assist with back pain.
89She has been consistent in respect of her complaints regarding the compromises she has had to make in respect of her social and recreational pursuits and in her personal life because of her back, as distinct from the contribution from her neck complaints. As I have said, I accept she is a truthful witness and so I accept her oral evidence and affidavit evidence in respect of those restrictions. Moreover, they are supported by medical evidence. I also accept the evidence of her partner. Although the relationship commenced after the plaintiff’s injury, his evidence in relation to the complaints made by the plaintiff about her back and his observations about the effects on her that he has witnessed, corroborate the plaintiff.
90The fact that the plaintiff has sustained an injury which meets the test for a serious injury does not mean that another injury cannot also meet that test. As the Court of Appeal said in Dressing v Porter, the Court must assess the impact of different conditions separately and decide whether the compensable injury is a serious injury.[68]
[68] Dressing v Porter [2006] VSCA 215, at paragraph [47]
Pain
91I accept that the plaintiff suffers from constant low back pain on a daily basis. Her pain increases with activity. Dr Doig confirms that if she were to undertake work activities without restrictions on lifting, bending, prolonged sitting and driving, she would exacerbate her back condition. The pain from her back disrupts her sleep and she sleeps in a foetal position to relieve the pressure on her lower back. She takes medication because of the pain, she might take a hot shower to manage the pain before returning to bed and her partner sometimes massages her back. I note that her neck pain also disturbs her sleep as deposed to in both affidavits and to which she readily conceded in cross examination. Although the neck complaints may impact on the plaintiff’s sleep, I accept the plaintiff’s evidence that in considering her back condition alone her sleep is disturbed. She also takes the medication for both the neck and back pain as I have previously observed, however, she commenced taking the medication following the back injury. She has had treatment in respect of the neck injury which is not insignificant in itself and is productive of consequences, but the medical evidence confirms that she has never recovered from the back injury which is productive of consequences and the medication she takes whilst easing the neck symptoms, also lessens her back symptoms and pain.
92The plaintiff’s evidence was that she ceased playing basketball solely due to her back condition. I find the plaintiff has not resumed to playing basketball because she is prevented by back pain.
93Her ability to perform domestic tasks as outlined above in relation to laundry and cooking are as a result of her back injury and I accept her evidence about this.
94Her ability to go on long walks is affected as a result of her back injury. The medical evidence from Dr Patel, Dr Woodgate, Dorset Rehabilitation Centre, Dr Doig and Mr Vellore confirm that she is restricted in her capacity to go for long walks. I accept that her social and recreational activities have been affected as she cannot sit for prolonged periods due to back pain.
95Intimacy with her partner has been affected as a result of her low back injury. This is confirmed by her partner. She and her partner have delayed having a baby due to their medication needs which flow from her lumbar back injury. This is a serious consequence.
96In the circumstances, I consider that the plaintiff’s pain and suffering consequences, in relation to her pain and sleep, the impact on intimate relations with her partner, the impact on her social, sporting and recreational activities, the need to take Nurofen, and the loss of her chosen career, constitute a serious long term impairment to the plaintiff, when judged by comparison with other cases in the range of possible impairments and losses at least very considerable and certainly more than significant or marked.
Conclusion
97Leave is granted to the plaintiff to commence common law proceedings for pain and suffering only in respect of the injury suffered in the course of her employment on or about 14 July 2016.
98I will hear argument with respect to costs.
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