Ghide v Corporate Express Australia Pty Ltd
[2014] VCC 90
•18 February 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-05048
| AKBERET GHIDE | Plaintiff |
| v | |
| CORPORATE EXPRESS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7 and 8 November 2013 | |
DATE OF JUDGMENT: | 18 February 2014 | |
CASE MAY BE CITED AS: | Ghide v Corporate Express Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 90 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Catchwords: Application under s. 134AB of Accident Compensation Act – injury suffered in the course of employment with the defendant
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Sutton v Laminex Group Pty Ltd [2011] VSCA 52, Aburrow v Network Personnel Pty Ltd [2013] VSCA 46, Barwon Spinners Pty Ltd and Others v Podolak [2005] VSCA 33
Judgment: Plaintiff’s application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. Blanden S.C. with Ms A. Wood | Zaparas Lawyers |
| For the Defendant | Mr J. Batten | Hall & Wilcox Lawyers |
HER HONOUR:
Introduction
1 The plaintiff was born in Eritrea. She is 36 years of age and married with an 18 month old daughter. The plaintiff is a born again Christian and a member of a multinational church.
2 The plaintiff was educated to Year 10 level prior to migrating to Australia in 1994 with her father and two siblings. She studied English and, by 1997, completed Year 12 studies.
3 During 1998, the plaintiff's father returned to Eritrea. The plaintiff, who was then working part-time as a cleaner with David Jones and studying by correspondence at the Brisbane Institute for a Certificate in Financial Services/Accounting,[1] and her siblings remained in Australia. The plaintiff applied for Australian residency.
[1] Transcript (TN) 38
4 In 1999, the plaintiff and her brothers moved to Melbourne. The plaintiff was not permitted to work until residency was granted in approximately 2003. She was, she said, dependent on handouts from church and other organisations.
5 In 2004, the plaintiff was introduced to and married her husband in Ethiopia. After spending 3 months in Ethiopia, the plaintiff returned to Australia alone.
6 However, in the years before the plaintiff’s husband migrated to Australia in 2007, she was employed by the defendant from late 2004. For the first 6 months as a casual and, from February 2005, in full-time employment as a picker/packer filling orders. The plaintiff was required to collect and pack items into containers, work she said involved a lot of lifting, bending and twisting.
7 In an affidavit sworn on 10 February 2012, the plaintiff deposed that in 2005 she injured her back while lifting boxes of sugar at work.[2] However, with treatment for what she described as muscular injury, and no more than two weeks off work, the plaintiff said she returned to full time duties and, until May 2010, experienced no further problems with her back. The evidence given at hearing by treating general practitioner, Dr Andrianakis suggests that the treatment received for this earlier episode of back pain consisted of medication, Nurofen and physiotherapy.[3]
[2] Plaintiff's Court Book (PCB) 9
[3] Transcript (TN) 88
8 In the same affidavit the plaintiff described the onset of lower back pain during the course of her employment, the treatment received and her initial attempt to return to work in the following words:[4]
[4] PCB 8-9
"10. On or about 24 May 2010 I was lifting boxes off the shelf onto the packing line. The shelf was located approximately at foot, lower leg level and the boxes that I was lifting were quite heavy containing reams of A3 sheets of copy paper. I noticed pain increasing during the day in my lower back, however I managed to finish my shift that day (the incident). I took painkilling medication at home that evening and rested. Upon my return to work the next day, the pain was significantly worse and I reported to my team leader who sent me to speak with my manager. The manager told me to see the work physiotherapist and I left by the afternoon and went and saw the physiotherapist.
11. The next day I was in too much pain so I took one day off work and returned after this day. I did light duties on the next day, however I had difficulty coping with the pain and was not able to finish work, leaving at about 3 pm. I wanted to see my local GP, Dr Heitbaum, but I believe she was on leave and I made the first available appointment, which was a couple of days later. I remained off work until then. The GP gave me one to two weeks off work to rest.
12. I tried to return to work again after this period of time, however pain has continually increased and I was unable to work, including doing light duties, which I attempted. I've not been able to return to my normal duties or to any employment since suffering this back injury."
9 I note that the copy Worker’s Injury Claim Form and the Employer’s Injury Claim, dated 28 June 2010 and 8 July 2010 respectively and tendered by the defendant, record that when the incident occurred the plaintiff was working standard hours of 37.5 hours per week. [5]
[5] Exhibit D1 (DCB) 111-112
10 Notwithstanding treatment for her lower back condition, from time to time consisting of physiotherapy (based on Dr Andrianakis’ evidence probably no less than 25 visits between 20 August 2010 and 3 February 2012[6]) hydrotherapy and painkilling and anti-inflammatory medication, the plaintiff has not worked or attempted to return to work since about July 2010.
[6] TN 107-108
11 The plaintiff told the Court that her husband, from whom we did not hear, had ceased work to care for her and their daughter, born in February 2012. He is paid a fortnightly carer’s allowance of $600. The plaintiff receives a $400 parental allowance. The plaintiff, nevertheless, indicated that if her condition recovered in the future she intended to look for work.
12 In her second and final affidavit sworn on 31 October 2013, the plaintiff deposed that her physical restrictions and pain had not changed or improved and she continued to be disabled by constant pain affecting her lower back, legs and groin.[7] In addition to permanent loss of earning capacity, she described a range of pain and suffering consequences impacting most areas of her life. I will return to discuss the nature and extent of the consequences alleged shortly.
[7] PCB 13.1
The evidence called and tendered
The plaintiff attested to the accuracy of the two affidavits, to which I have referred. She was cross-examined at length. The affidavit of her sister, Marta Haile Ghide, sworn on 1 November 2013, was not challenged. Her evidence generally attested to the contrast she had observed between the plaintiff's domestic and social activities before and after the incident.
13 The plaintiff and the defendant tendered extracts from their respective Court Books. The material tendered by the plaintiff consisted of multiple medical reports from health professionals and specialists, correspondence and copies of the results of CT and MRI scans.[8]
[8] Exhibit P1
14 Treating general practitioner, Dr Andrianakis was called for cross-examination.
15 In addition to reports from medico-legal specialists, the Defendant’s Court Book included 'Occupational Opinion and Labour Market Analysis Report' prepared by CoWork Pty Ltd occupational therapist, Joanne Bryant, dated 18 September 2012, copy ‘Returned to Work Agreement’ dated 5 August 2010, initial assessment and progress reports prepared by IPAR Rehabilitation between 30 August 2010 and 27 October 2010, Workers Injury Claim Form dated 28 June 2010, Employers Injury Claim Report dated 8 July 2010 and copy questionnaires completed by treating neurosurgeon, Mr D'Urso, dated 12 November 2010 and by Dr Heitbaum, dated 16 July 2010.[9]
[9] Defendant's Court Book (DCB), Exhibit D1
16 Film was shown during the course of the hearing. It was acknowledged that surveillance had been undertaken on three dates, 15 July, 24 July and 30 July 2012 over a total of 15 hours. The film shown at hearing comprised some 47 minutes and 10 seconds of film taken on 24 July 2012 over a five hour period of surveillance. Whilst the film was omitted from the formal tender process, both parties relied on its content and the plaintiff's responses given during cross-examination.
The application
17 The plaintiff seeks leave to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages.
18 Leave was sought under paragraph (a) of the definition of 'serious injury', namely serious permanent impairment or loss of function of the plaintiff's lower back.
19 A further application made under paragraph (c) seeking leave in respect to permanent severe mental or behavioural disturbance or disorder was abandoned. As a consequence, it was not necessary to also determine whether, on the evidence, there was any work-related mental or behavioural disturbance or disorder, which also constituted serious injury under the Act.
20 'Permanent' refers to impairment of the plaintiff’s lower back that is: "likely to last for the foreseeable future".[10]
[10]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 [33]
21 The determination of whether this injury is 'serious' is assessed by reference to the pain and suffering consequence or the loss of earning capacity consequence to the plaintiff due to impairment of her lower back, which would not meet the test unless these are when judged by comparison with other cases in the range of possible impairments or loss of a body function, 'fairly described as being more than significant or marked and as being at least very considerable'.[11]
[11] Section 134AB(38)(c)
22 The plaintiff was also required to discharge the burden imposed by section 134AB(38)(e)(i) and (ii), by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more.
23 The plaintiff would not establish the requisite loss of earning capacity, where after taking into account her physical capacity for suitable employment post-injury and her attempts to participate in rehabilitation and training, she has a capacity for employment which, if exercised, would result in her earning more than 60% of the pre-injury earnings as determined in accordance with section 134AB(38)(f). Moreover, she must prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[12]
[12] Sections 134AB(19)(b) and (38(g)
24 Section 5(1) of the Act defines 'suitable employment' such that the plaintiff's capacity to earn from suitable employment must be taken into account, regardless of whether the suitable employment is available and is of a type or nature that is generally available in the employment market.
The dispute
25 Whilst conceding compensable injury to the plaintiff's lower back on 24 May 2010, the defendant contended:
Ø the incident had probably caused soft tissue injury to the plaintiff's lower back, the effects of which were long since resolved (“a transient episode in the nature of an exacerbation. There’s no evidence in this case of an aggravation in the legal sense of increasing the gravity of...” or “…that the underlying pathology has been accelerated or made worse by … a pretty minor incident…”[13]);
[13] TN 136
Ø alternatively, any aggravation of degenerative disc disease has also resolved, subject to the expectation that the plaintiff may experience some intermittent low back and leg pain;
Ø alternatively, any pain and suffering consequence or loss of earning capacity consequence arising from work-related injury to the plaintiff’s lower back was not serious (at least very considerable);
Ø were the plaintiff motivated to work, she has a residual earning capacity, which, if exercised, would take her over the statutory threshold. In this case, it was common ground that the plaintiff’s without injury earnings figure was $845 gross per week. In order to meet the statutory test, she was required to prove a permanent loss of earning capacity of $507 gross per week or more;
Ø this was a 'disentanglement' case because the plaintiff's current presentation was substantially due to a non-organic chronic pain syndrome.
26 Where the latter issue arises, it is necessary to first determine whether there exists a substantial organic basis for the pain and suffering and/or economic loss consequence of lower back injury on which the plaintiff relies. If not, the plaintiff must 'disentangle' the physical contribution to the pain and suffering and/or economic loss consequences alleged from the psychological in order to satisfy the Court that the consequence attributable to compensable lower back injury satisfies the statutory test.
27 Finally, I was exhorted by the defendant to pay close attention to the accuracy and reliability of the plaintiff’s evidence.
28 Relevantly, quite apart from any concern expressed about the relationship between the organic injury and the severity of the plaintiff's reported symptoms, each of the doctors (other than perhaps, occupational physician, Dr Clark) appeared to consider the plaintiff genuine.
29 The plaintiff gave her evidence in a quiet and straightforward manner. As my discussion of the evidence shows in due course, I did not form the view that the plaintiff had consciously exaggerated her incapacity since the incident. I did, however, reject some parts of the plaintiff's evidence for the reasons given below and I made allowance for the contrast between the plaintiff's presentation in Court (throughout the three day hearing she moved about the Court and sat displaying significant discomfort) and her comparatively much better presentation on the day the film was obtained.
Early treatment, investigations and return to work before 5 August 2010
30 Under cross-examination, the plaintiff agreed that her responses when interviewed by the CoWork occupational therapist, Joanne Bryant on 15 August 2012 had been truthful.
31 In particular, during cross-examination, the plaintiff agreed with various matters reported in the CoWork report and/or she made the following assertions:
Ø when carrying out her normal picking duties on Monday 24 May 2010 she had experienced pain in her back, which travelled down her leg. Whilst at a later stage, the plaintiff agreed that, as described in the claim form, the level of her pain had been: “slight”, I note that the claim form also stated that from that time her pain had grown “more and more”;
Ø on the Monday of the incident she had continued to work;
Ø she took a painkilling medication (over-the-counter medication, Panadol) after going home;
Ø she returned to work the next day;
Ø she found she could not move her leg and she kept going to the toilet to rest;
Ø at 1 pm on Tuesday she advised her team leader that she was unable to stand;
Ø her manager made an appointment and she was sent to a physiotherapist (Jarrod Katzer) for treatment;
Ø she had worked only half a day on the Thursday before consulting her doctor. I note, however, that the plaintiff was less certain in her answer when she denied working on the following Monday;[14]
[14] TN 58
Ø she attended Dr Heitbaum for the first time on Tuesday 1 June 2010. Both in her first affidavit and under cross-examination the plaintiff indicated that the delay in seeking medical treatment other than physiotherapy was due to her local doctor being on leave. This evidence did not explain why, if as claimed the level of her pain had increased, the plaintiff had not sought treatment from another doctor at the clinic during the period Dr Heitbaum remained unavailable;
Ø the doctor advised her that she had suffered muscle strain;
Ø Dr Heitbaum prescribed an anti-inflammatory medication, Voltaren and gave her two weeks off work.
32 A CT scan of the lumbosacral spine, obtained at the request of Dr Heitbaum on 8 June 2010, relevantly reported broad-based disc bulging at the L4/L5 level (“causing flattening of the anterior margin of the spinal theca and mild narrowing of the spinal canal”) and minor disc bulging at the L5/S1 level, with the disc abutting "both S1 nerve roots near the origin from the thecal sac and also at the level of their lateral recesses".[15] Without indicating when and by whom this advice was conveyed, the plaintiff deposed she had been told that a disc pressing against the nerve was causing the pain running down her legs and into her foot, particularly on the left side.[16]
[15] PCB 68
[16] PCB 9
33 The plaintiff’s attendances on Dr Heitbaum appear to have been summarised in a report dated 25 October 2011[17] (the October 2011 report) and addressed to the plaintiff’s solicitors by Dr Andrianakis. He worked at the same clinic and assumed management of the plaintiff’s condition from 5 August 2010. The October 2011 report, among other things, summarised attendances and treatment received post-scan as follows:
[17] PCB 34-36
Ø the plaintiff was referred for further physiotherapy and certified as unfit for work;
Ø on 25 June 2010, the plaintiff continued to complain of severe lower back pains and stiffness and pain radiating into both lower limbs and feet. Examination apparently revealed limited range of motion in the lower back but no loss of power. The plaintiff commenced on steroidal medication, Prednisolone, to reduce inflammation and she was certified as unfit for work for a further two weeks.
Ø by 9 July 2010, the plaintiff was certified as fit to perform modified duties, 4 hours per day, 2 to 3 days per week;
Ø on 16 July 2010, the plaintiff presented at the clinic complaining of lower back pain and stiffness. She reported trouble standing, walking and sitting when pain was severe. The plaintiff further reported attending work for only 2 hours before severe pain caused her to leave. According to the October 2011 report, the plaintiff was given further time off to rest before returning to light modified duties for 2 hours per day, 2 days per week;
Ø having resumed modified duties, the plaintiff reported she suffered severe pain after two days work and had struggled to remain at work and cope with her rehabilitation, which at the time included physiotherapy and hydrotherapy.
34 Notwithstanding the matters reported above, the questionnaire completed by Dr Heitbaum suggests that on 16 July 2010, the general practitioner considered her patient fit to resume modified, alternative duties on a return to work plan, commencing with 2 days per week for 2 to 4 hours. At the time, the doctor expected that with a gradual increase in her hours, the plaintiff could achieve normal working hours.[18] In the same document, the doctor described the plaintiff's injury or medical condition as: "Lower broad based disc bulge L4-L5 level”, in the treatment of which she reported the plaintiff was taking analgesic medication and undergoing physiotherapy weekly and hydrotherapy twice weekly. Dr Heitbaum also expected her patient to make a full recovery.
[18] DCB 119-121
35 At hearing, Dr Andrianakis agreed Dr Heitbaum’s prognosis was consistent with the reported result of the CT scan and, further, that the scan had shown some minor changes in the lower lumbar spine.[19]
[19] TN 90-91
36 During cross-examination, the plaintiff was unsure about the length of time over which she performed modified duties under a return to work plan. This plan apparently involved sitting at a computer and printing labels or tags for two hours per day (“I’m not sure. I’m not exactly sure but maybe two weeks or a week.” Maybe two weeks or a week. Could it maybe have been a couple of days? --- No, more than that.”[20]). The plaintiff claimed that the work performed, which she had last attempted: “somewhere in July”[21] 2010, had increased her pain levels.
[20] TN 39
[21] TN 40
37 The plaintiff agreed that when last seen by Dr Heitbaum on 23 July 2010, the doctor had certified her as fit for modified duties. According to the plaintiff on the same date, this doctor made an appointment for her to consult Dr Andrianakis on 5 August 2010.
38 The plaintiff gave two reasons for changing doctors. Firstly, because Dr Heitbaum had informed her that she did not wish to be involved in a WorkCover claim[22] and, secondly, because the doctor claimed that her knowledge of treating back problems was limited.[23] I did not find the suggestion that the doctor lacked expertise in the treatment of back conditions plausible. Rather, a more likely explanation was that, as Dr Andrianakis indicated in his evidence, WorkCover patients attending the clinic were usually referred to him.
[22] PCB 9
[23] TN 27
39 Dr Andrianakis said that when he took over her care on 5 August 2010, he stopped the plaintiff from returning to work because she was in pain. In a letter dated 5 August 2010, addressed to the employer representative,[24] Dr Andrianakis explained, among other things, that the plaintiff reported significant lower back and leg pain, which he attributed to prolapse at the L4-5 level of her spine (this conclusion appears to have been at least in part informed by the CT scan results reported by the radiologist some two months earlier). Pending review of her condition by a neurosurgeon and until she was able to walk without pain, the doctor advised his patient was unfit for work.
[24] PCB 32
40 Much of the cross-examination of Dr Andrianakis was directed to challenging the soundness of his reasons for continuing to certify the plaintiff unfit for any employment since taking over the management of her condition in August 2010 and, to exploring the extent to which he had co-operated in the process of achieving a return to work, particularly in the latter part of 2010.
41 Notably, the results of MRI study of the plaintiff’s lumbar spine obtained by neurosurgeon, Mr D’Urso on 25 August 2010 reported evidence of disc degeneration and generalised bulging at the L5-S1 level ("…The discs from T11-12 to L4-5 are within normal limits….Minimal disc degeneration with preservation of disc space height is confined to L5-S1, there is no definite focal disc protrusion. At L5/S1, generalised disc bulge and facet joint hypertrophy results in borderline subarticular stenosis for the traversing S1 nerves, more marked on the left than the right. No foraminal compromise is seen"[25]). These results suggest that, by late August 2010, the radiological evidence no longer indicated a problem at the L4-5 level, which might help explain the plaintiff's reports of increasing back and bilateral leg pain.
[25] PCB 69
42 Relevantly, at hearing, Dr Andrianakis agreed that further radiological investigation was not warranted, unless the plaintiff’s condition worsened.[26]
[26] TN 108
43 I could not readily reconcile Dr Andrianakis’ explanation of the cause of his patient’s pain and disability with, particularly, the current specialist evidence. One reason for this was the evidence given under cross-examination. Dr Andrianakis appeared to misconstrue the reported results of the MRI study. He told the Court that, at the time the MRI study was performed, the disc bulge, which had previously been shown as “effacing” the theca (presumably a reference to the bulge revealed at the L4-5 level on the CT scan), had “retracted a bit and wasn’t causing such a problem” (as mentioned, the report following the MRI study had indicated that this disc was within normal limits).[27]
[27] TN 99
44 Another, reason involved the suggestion that there remained a dynamic physical cause for the level and severity of the plaintiff’s reported pain and disability. [28]
[28] TN112-113
45 Dr Andrianakis’ oral evidence was to the effect that, the radiology demonstrated that the plaintiff’s condition could change from day to day because: “..on any particular day the bulge can come out further and cause even more pain.”[29] Having regard to the totality of his evidence, which included correspondence and later reports (the last dated 10 May 2013[30]), I was satisfied that when he gave this evidence Dr Andrianakis probably meant the disc bulge (or the prolapse to which both he and Mr D’Urso referred) at the L5-S1 level. However, the suggestion that the radiology obtained in 2010, helped explain a worsening of the plaintiff’s lower back condition and reportedly constant pain in the three or more years since the incident, was against the weight of particularly the current specialist evidence.
[29] TN 98-99
[30] PCB 32-39
46 For convenience, the specialist evidence is summarised below from the time at which each specialist first examined the plaintiff, along with the evidence of the history of treatment received and the efforts made to effect a gradual return to work during the latter part of 2010.
Treatment and specialist evidence from 5 August 2010
47 It appears that the plaintiff continued to see the physiotherapist, Mr Katzer until Dr Andrianakis took over her care. He referred the plaintiff for both physiotherapy and hydrotherapy by a physiotherapist closer to where she was living.
48 In the October 2011 report, among other things, Dr Andrianakis indicated that on 5 August 2010, he had prescribed medication, an analgesic, Tramadol and an anti-inflammatory, Brufen. It was not clear from the evidence over what period or periods this medication was prescribed. In any event, Dr Andrianakis also referred the plaintiff to treating neurosurgeon, Mr D’Urso, with a later referral to orthopaedic surgeon, Mr Barrett for further opinion.
49 According to her report dated 25 October 2011, over a three month period commencing from 20 August 2010, physiotherapist, Ms Pennas treated the plaintiff for a work-related lower back injury.[31] This apparently involved physiotherapy twice weekly, as well as weekly hydrotherapy, in the treatment of low back pain and pain radiating into the plaintiff’s buttocks and lower limbs bilaterally, with some numbness in her right foot.
[31] PCB 50-52
50 I note that, in late October 2010, despite some slight improvement in the plaintiff’s condition, Ms Pennas advised rehabilitation provider, IPAR, that the plaintiff was not fit to return to “suitable duties”[32] and, as her written report confirms, this opinion was unchanged when, in late 2010, the plaintiff's entitlement to treatment was terminated.
[32] DCB 102
51 Mr D’Urso examined the plaintiff twice, on 24 August 2010, at which time he arranged the MRI study already mentioned and, for the last time, on 8 October 2010.
52 Before summarising Mr D’Urso’s evidence, I note that pursuant to section 112 of the Act, occupational physician, Dr Clark, was appointed by the insurer to examine the plaintiff on 7 September 2010. As part of this examination Dr Clark evidently considered the available radiology ("degenerative changes but no focal disc protrusion"[33]) and he visited the worksite and reviewed the tasks undertaken by the plaintiff.
[33] DCB 47
53 Dr Clark was the only doctor who queried whether, in the absence of any untoward incident, the tasks undertaken by the plaintiff as a picker/packer provided a plausible cause for a work injury. He nonetheless, accepted that the incident alleged may have led to work-related exacerbation of an underlying degenerative spinal condition.
54 Furthermore, Dr Clark was the only doctor to conclude that any work-related lower back condition was fully resolved, such that the plaintiff required no further treatment and (subject to review by Mr D'Urso in October 2010) that she was fit to resume unrestricted physical work. His report shows that in forming this opinion, Dr Clark relevantly considered, among other matters, the following:
Ø The plaintiff’s report that she was able to perform her normal activities of daily living without restriction;
Ø The plaintiff’s report that she was taking analgesia as required for back pain and having physiotherapy and hydrotherapy twice weekly;
Ø The absence of any findings on clinical examination or observations during the worksite visit consistent with ongoing symptomatic injury and disability (normal gait, sitting normally, no spinal tenderness or muscle spasm on palpitation of the lumbar spine, no difficulty in climbing on and off the examination couch or sitting up on the couch from a supine position with legs extended and clasping her calves, walking and moving normally during the worksite inspection);
Ø Behaviour he deemed abnormal illness behaviour because it was inconsistent with the plaintiff’s clinical presentation. In this regard, the doctor also noted that the plaintiff: “..sat normally as she presented her history and then stood with her hand on her right buttock as she walked to the examination room. Subsequently she was observed to place her hand on her left buttock…Movements at the waist were mildly restricted on formal examination but were observed to be of normal range at other times”.[34]
[34] DCB 48
55 The progress reports made by IPAR between 27 August 2010 and 27 October 2010 indicate that during this period the rehabilitation provider attempted to arrange meetings with both Dr Andrianakis and Mr D'Urso to obtain information to facilitate a graduated return to work.[35]
[35] DCB 89-104
56 Conflicting evidence was given about the extent to which both the plaintiff and the general practitioner co-operated in this process. In the reports submitted by IPAR, we were told:
Ø the plaintiff had agreed to trial a graduated return, subject to her doctor certifying her fit to undertake the duties available under a return to work program (where it was contemplated that she would perform light picking duties and print labels and invoices);
Ø the plaintiff had agreed to a representative of IPAR attending the appointment made for Mr D'Urso to review her condition on 8 October 2010, until being advised against this course by the general practitioner. This statement was contested by the plaintiff. Her evidence was to the effect that the IPAR representative had been advised to make his own appointment with Mr D'Urso because the plaintiff viewed her appointment with the specialist as a private matter.[36]
[36] TN 52
57 At hearing, Dr Andrianakis also contested the assertions that he had not responded to IPAR’s correspondence and that his refusal to participate in a Case Conference or meeting, despite being offered payment for the time involved, indicated a lack of co-operation.[37] In short, Dr Andrianakis told the Court that as a general rule he insisted on written exchanges to avoid being misrepresented. Moreover, he denied advising patients not to sign return to work agreements and not to attend workplace assessments.
[37] TN 91-92
58 In this case, Dr Andrianakis strongly denied advising the plaintiff to refuse IPAR’s attendance at the appointment with Mr D'Urso.
59 Regardless of whether the plaintiff had changed her mind and withdrawn earlier permission for IPAR to attend her appointment with Mr D’Urso, on 12 November 2010 he completed a written questionnaire. In effect, the answers given in this document contradicted the general practitioner’s stance that his patient was unfit to attempt the proposed return to work.[38]
[38] DCB 116-118
60 The salient features of the surgeon’s reports are summarised as follows:
Ø initially on 24 August 2010, the plaintiff reported she was taking Panadol on a “prn basis”;
Ø clinical examination on the same date had not revealed any neurological deficits. Moreover, "… straight leg raise was 70 degrees bilaterally, which caused some back pain. Akberet could stand on her heels and toes and she could flex her spine so that she came within 20 cm of touching her toes. She extended to 30°. The hips are mobile and non-tender and her spine was morphologically normal".[39] As I understood the surgeon's evidence, the plaintiff's complaint of pain and bilateral sciatic symptoms, which at the time she rated as 8/10 on the VAS scale and the results of the CT scan prompted him to obtain an MRI scan to more fully evaluate whether, as he then suspected, the symptoms of which the plaintiff complained were being caused by the lumbosacral disc and S1 radicular pain;
[39] PCB 41
Ø prior to answering the questionnaire, Mr D'Urso advised Dr Andrianakis, by letter dated 11 October 2010,[40] that the MRI radiology revealed: “broad-based prolapse at L5-S1 with subarticular stenosis for the S1 nerve roots little worse on the left than the right”. Whilst his interpretation of the images no doubt pointed to some organic basis for the plaintiff’s symptoms, Mr D'Urso’s report shows that he could not reconcile the severity of the plaintiff’s reported symptoms (she “continues to struggle with back pain and bilateral sciatic symptoms worse on the left. Elsewhere, the findings are essentially normal”) with the revealed radiology and with the results of his clinical examination (“The symptoms are somewhat worse than I would expect”);
Ø on 11 October 2011, Mr D'Urso recommended epidural injection both for diagnostic and therapeutic purposes (the former, presumably to help ascertain whether irritation of the nerve root contributed to the symptoms reported and, the latter, presumably as a means of treating any inflammation in and around the S1 nerve root);
Ø Mr D'Urso also recommended core stability physiotherapy exercise, hydrotherapy and simple analgesic medication, pending the outcome of the epidural injection.
[40] PCB 40
61 I found the more detailed report submitted to the plaintiff’s solicitors helpful in clarifying the surgeon’s reasons for questioning the severity of the symptoms reported and for recommending epidural injection.[41] For instance, in this report:
[41] PCB 41
Ø Mr D'Urso noted that the MRI study had shown: “lumbosacral disc degeneration, minor prolapse some slight subarticular stenosis for the S1 nerve root little worse on the left than the right”. He concluded that, lumbosacral disc degeneration was contributing to ongoing symptoms, including “possible” S1 radicular symptoms related to the broad-based degenerative prolapse;
Ø given the reported history of back pain and bilateral sciatic symptoms in association with repetitive lifting of weights of up to about 5 kg in the plaintiff’s workplace, Mr D'Urso accepted a likely work contribution to the development and progression of lumbosacral disc degeneration and broad-based prolapse at the L5-S1 level;
Ø Mr D'Urso concluded the plaintiff was fit for light, part-time employment. His response to the questionnaire some weeks later on 12 November 2010 also shows that, at that time, Mr D’Urso considered work involving light picking and making labels for 1 to 2 hours per day for up to 20 hours per week, constituted suitable employment;[42]
Ø Mr D'Urso was hopeful that the plaintiff’s condition would improve with the passage of time, although he also contemplated (in view of the later specialist evidence, probably correctly) the possibility that she would be left with some permanent impairment of her ability to perform unrestricted manual physical activity.[43]
[42] PCB 42
[43] PCB 42
62 As it turned out, Mr D’Urso did not, as anticipated, have the benefit of the results of further diagnostic investigation or, for reasons which were not explained by the evidence, any later opportunity to review his patient’s condition.
63 The plaintiff has since been assessed for medico-legal purposes by a different neurosurgeon appointed by her solicitors, Mr Brownbill. I will discuss his evidence shortly.
64 The plaintiff gave two reasons for not having an epidural injection: she wanted a second opinion and the insurer had refused to pay for the injection.[44] It was never directly put to the plaintiff that she had refused this procedure.
[44] TN 53
65 In a letter dated 29 November 2010 addressed to IPAR, Dr Andrianakis informed the rehabilitation provider that, in the weeks since the plaintiff was last seen by Mr D’Urso and, following refusal of a request for funding of the injection, he had prescribed Panadeine Forte and Prodeine in the treatment of a worsening back condition (what was causing a worsening of the condition was not explained). The side-effects of the drugs (drowsiness and poor judgment) also appeared to have influenced the decision to continue to certify this patient as unfit for any work, despite the treating surgeon’s earlier advice.[45]
[45] PCB 33
66 During the defendant's closing submissions, counsel informed the Court that payment of medical and like expenses were terminated by notice toward the end of 2010. However, I was told this decision was reviewed and, having reached a compromise, payments were resumed until sometime in 2011.[46]
[46] TN 132-134
67 Dr Andrianakis’ evidence in the last of his written reports dated 10 May 2013 also shows, that at conciliation in January 2013, the plaintiff had not been successful in reinstating these payments.
68 These matters suggest that, subject to her treating doctor recommending this treatment, funding could have been sought from the insurer for this and other therapies at least until the cessation of payments. However, Dr Andrianakis’ evidence at hearing also suggests that, whilst he believed the injection could produce lasting benefit by reducing inflammation around the S1 nerve, this treatment was not pursued because his patient had not wanted the procedure;[47]
[47] TN 103
69 In summary then, it appears that in late 2010, funding for an epidural injection probably was refused, although, subsequently, during the period payments were resumed, this procedure was not pursued by the plaintiff or her doctor.
70 Falling pregnant may offer some explanation for any reluctance to undergo the epidural injection between about mid-2011 and the birth of the plaintiff’s daughter in early 2012, as might the fact that the plaintiff’s discussion of this procedure with her orthopaedic surgeon was mentioned in passing, without further comment, by Mr Barrett. He saw the plaintiff twice, on 14 October 2010 and, during her pregnancy, on 2 August 2011.[48]
[48] PCB 44-49
71 I expect that Mr Barrett’s interpretation of the MRI film and his advice (having examined the plaintiff less than a week after the neurosurgeon) that the plaintiff was unfit to work probably also influenced the general practitioner’s decision in late November 2010 to reject a return to work plan, despite his belief that the plan constituted a “reasonable offer”.[49]
[49] PCB 33 and 35-36
72 Without further explanation of what this might entail, in both reports Mr Barrett advocated further conservative treatment and ongoing assessment of reportedly increasingly severe symptoms (lower back pain that radiated out to both buttocks and in to both lower limbs and feet, particularly on the left side, with some numbness in the right little toe region when seen in October 2010 and intermittent numbness into the left 5th toe region when seen in August 2011).
73 Mr Barrett attributed the plaintiff’s condition to work-related “painful ruptures involving the L4-5 and L5-S1 lumbar intervertebral discs’’. The latter, he concluded, had produced “posterior disc bulges, and clinical evidence of left S1 root sciatica.’’[50]
[50] PCB 46 and 49
74 When last examined during pregnancy in 2011, Mr Barrett considered the plaintiff's prognosis very uncertain and the possibility of a return to any work very unlikely.
75 As is apparent from his reports, Mr Barrett studied the MRI images. The results of the CT scan result, were not mentioned probably because he, like most of the specialists, paid particular attention to the MRI film. Examination of the MRI images revealed, so Mr Barrett reported: “… normal general alignment throughout the lumbar spine. The intervertebral disc spaces are normally maintained and there is some mild and early desiccation noted in the L4-5 and L5-S1 intervertebral discs, both with quite minimal posterior bulges noted. The L4-5 disc has a slight postero-lateral disc bulge, pushing in to the lower portion of both intervertebral foramina, but below the emerging L4 nerve root. The L5-S1 disc has a mild posterior disc bulge, slightly more to the left than the right, and very close to both S1 nerve roots.[51]
[51] PCB 45
76 Mr Barrett also performed clinical examinations. The first of these indicated very limited movements of the lumbar spine, straight leg raising of 80% bilaterally (if taken carefully) and no neurological deficits or deficiencies referable to the sciatic nerve roots. I note, however, when reviewing the plaintiff in August 2011 Mr Barrett did record some slight depression of sensation involving the left L5 and S1 dermatome regions, although subsequent specialist examinations have not found evidence of any neurological features to the plaintiff’s presentation.
77 A number of matters arising from Mr Barrett’s evidence require comment. Firstly, the statement made in both reports that the MRI images had not contained evidence of pre-existing injury or disease and his observation that there was a slight postero-lateral disc bulge at the L4-L5 level are not reflected in the evidence of both the reporting radiologist and the neurosurgeon, Mr D’Urso. As mentioned, they reported MRI evidence of disc degeneration (“minimal” or “minor” depending on the report made) in association with a generalised disc bulge/broad-based degenerative prolapse at the L5-S1 level.[52]
[52] PCB 46
78 Having read their reports, I was satisfied that medico-legal experts, Mr Brownbill for the plaintiff and orthopaedic surgeon, Mr Dooley for the defendant probably also viewed the MRI film.
79 Mr Brownbill, who examined the plaintiff on 15 February 2011, 20 September 2011 and 4 October 2013,[53] appeared to adopt the radiologist’s interpretation of the film when, after reciting the passage from the radiologist’s report, set out earlier, he said: “I have reviewed those film and noted the minimal degenerative changes”[54]. Whereas, Mr Dooley reported that the MRI disclosed evidence of naturally occurring degenerative changes, without revealing disc prolapse or evidence of nerve root entrapment ("… degenerative disc disease of the low lumbar spine affecting the low sacral level. There may be some mild desiccation of the L4/5 disc. There has not been any so-called traumatic rupturing of these discs"[55]).
[53] PCB 70-84
[54] PCB 77
[55] DCB 31
80 Both Mr Brownbill and Mr Dooley considered documentation, which included the earlier reports made by the treating neurosurgeon and treating orthopaedic surgeon. In summary then, their reports suggest they too found radiological evidence suggestive of degenerative change at the L5-S1 level, although Mr Dooley had also noted mild desiccation at the L4-5 level.
81 Secondly, having read the summary of the clinical findings reported in October 2010, I had difficulty identifying which of the matters reported justified Mr Barrett’s further statement that he had found clinical evidence of left S1 root sciatica.[56] This is not to deny that, the plaintiff continues to report symptoms suggestive of S1 root sciatica, although objective evidence of this in the years since the incident is scant.
[56] PCB 46
82 In October 2010, at the request of the insurer, the plaintiff was examined by psychiatrist, Dr Kornan. He diagnosed a "mild" Adjustment Disorder with anxiety and depression, secondary to any work-related back pain. This condition was not, Dr Kornan said, productive of any psychiatric incapacity for the plaintiff's pre-injury duties. Moreover, with ongoing support from the plaintiff’s general practitioner and some psychotropic medication from time to time, Dr Kornan did not then envisage the need for specialist treatment.[57]
[57] Dr Kornan in a report dated 26 October 2010, DCB 38-45
83 However, later medical evidence suggests that the plaintiff’s mental state worsened. According to the October 2011 report, in January 2011 the plaintiff presented to the general practitioner with pains and discomfort so severe she could not cope with the basic activities of daily living. She apparently described feelings of fatigue, tiredness, poor sleep and depression. Dr Andrianakis’ report suggests the plaintiff’s depression was associated with the suggestion that her back injury was not work-related.[58]
[58] PCB 36
84 Dr Andrianakis referred the plaintiff to psychologist, Mr Tsironis for treatment of depression and pain.
85 The plaintiff tendered two reports from Mr Tsironis. These confirm that he has provided psychological therapy, which includes cognitive behavioural therapy, since 10 February 2011.[59]
[59] PCB 53-64
86 It is convenient at this juncture to interpose my discussion of the medico-legal evidence obtained whilst the plaintiff underwent psychological therapy, in 2011 (before and during the plaintiff’s pregnancy) and, in 2013 from Mr Brownbill and Mr Dooley.
87 As mentioned, Mr Brownbill examined the plaintiff on 15 February 2011, 20 September 2011 and 4 October 2013. [60] The salient features of his reports are summarised as follows:
[60] PCB 70-84
Ø the plaintiff initially reported lower back and leg pain, present all the time and increasing. This pain was worsened by sitting, standing or physical activity. She complained of numbness on the top and outside of the left foot, an inability to sleep on her back or on her left side, needing to lie down most of the time, an inability to perform housework and taking up to 6 Panadeine tablets and 8 Panadeine Forte tablets per day. On 20 September 2011, by which stage she was some 18 weeks pregnant, the plaintiff reported worsening pain. At the time she reported taking 8 Panadol tablets per day. On 4 October 2013, the plaintiff reported no improvement in her condition, in the treatment of which she said she attended for physiotherapy (five times per year as part of a treatment plan organised by the general practitioner) and took medication, Panadeine Forte (three times), the tricyclic antidepressant, Endep and Panamax (two tablets) daily;
Ø clinical examination on each occasion revealed slight restriction of thoraco lumbar spinal movements without neurological abnormality or signs of radiculopathy. Relevantly, on 3 October 2013 Mr Brownbill found global reduction of sensation to touch throughout the left leg, not in specific nerve or nerve root distribution;[61]
[61] PCB 81
Ø as previously mentioned, Mr Brownbill evidently agreed with the radiologist’s interpretation of the MRI film;[62]
[62] PCB 73 and 77
Ø in each of his three reports, Mr Brownbill drew attention to what he perceived to be a discrepancy between the severity of the pain as described and the clinical and radiological evidence ("Whilst I would not have anticipated the degree of severity of her described pain I consider that in all probability she has suffered damage to the lumbo sacral intervertebral disc in the described work activities with some resulting ongoing pain"[63] and "I am unable to explain from the physical neurosurgical point of view (noting the previous MRI scan result) this lady's described ongoing and increasing low back pain and an increasingly bilateral leg pain which involves all parts of both legs"[64] and "I am unable to explain from a physical neurosurgical point of view her ongoing unremitting back and bilateral leg pain (with some increase following the original injury) over three years";[65]
[63] PCB 73
[64] PCB 78
[65] PCB 82
Ø in each of his reports Mr Brownbill opined the plaintiff had suffered injury involving the lumbo sacral intervertebral disc as a result of the described work activities. In February 2011, Mr Brownbill spoke of damage to the lumbo sacral intervertebral disc,[66] in September 2011 he diagnosed likely: "soft tissue damage to structures about the lower back with likely L5-S1 disc involvement but without neurological damage"[67] and in October 2013 he reiterated his view that the plaintiff had suffered damage to the lumbo sacral intervertebral disc. This damage, he added, may have involved aggravation of pre-existing asymptomatic degenerative change at this level of the plaintiff's spine;[68]
Ø by October 2013, Mr Brownbill considered the plaintiff physically capable of attempting a graduated return to work, not involving manual type activities and where the plaintiff was able to avoid heavy lifting, or forced spinal mobility, repeated bending or prolonged standing or sitting;
Ø on each occasion, he examined the plaintiff, subject to her pregnancy, Mr Brownbill advocated further MRI scanning and review at a pain management clinic should the plaintiff's back and leg pain continue. As mentioned, Dr Andrianakis’ evidence suggests that he saw no present need for further radiological investigation, although he clearly wanted his patient to enter a multidisciplinary pain management program, where she could undergo assessment and treatment of the physical and psychological factors contributing to her presentation.[69]
[66] PCB 73
[67] PCB 78
[68] PCB 82
[69] TN 106-108
88 Mr Michael Dooley examined the plaintiff on 22 September 2011, 20 September 2012 and 7 August 2013.[70] The salient features of Mr Dooley's reports are summarised in the following points:
[70] DCB 29-37.4
Ø The plaintiff initially reported ongoing and worsening low back pain radiating into the buttocks, groins and lower limbs. Pain was aggravated by sitting and standing. She also mentioned intermittent numbness of both feet. When reviewed some seven months after the birth of her child by caesarean section, the plaintiff reported that her low back pain had remained as before and could be aggravated by activities such as lifting or manoeuvering her baby. Among other things, she mentioned a walking tolerance of 10 minutes, intermittent use of Panadeine Forte for treatment of pain and difficulty playing with her baby and getting down onto the ground. The plaintiff also indicated that she suffered stress caused by ongoing pain and was now cared for by her husband who had ceased work to look after her. When reviewed for the last time in November 2013 the plaintiff described constant low back pain and pain in both lower limbs in the treatment of which she was taking Panadeine Forte and Endep. The plaintiff said she was depressed. In addition to the previously described limitations on her activities, the plaintiff reported difficulty standing in one position for about hour. She gave the example of standing to cook, which the plaintiff reported caused a lot of back pain;
Ø as mentioned, Mr Dooley’s interpretation of the MRI film was that it indicated naturally occurring degenerative changes affecting the low sacral level of the spine, without revealing disc prolapse or evidence of nerve root entrapment; [71]
[71] DCB 31
Ø in each of his reports, Mr Dooley expressed the view that the work-related episode in May 2010 had probably aggravated the underlying degenerative changes, although he also believed the acute aggravating factor had resolved.[72] The plaintiff’s complaint of ongoing pain that had become constant in relation to the lumbar spine and regular in relation to her lower limbs, far exceeded Mr Dooley’s expectation that her condition would cause "some intermittent low back pain and some lower limb pain";[73]
Ø Mr Dooley accepted that the plaintiff was no longer physically capable of performing regular, heavy physical work or work involving a lot of bending, lifting or twisting;
Ø in Mr Dooley’s opinion, the plaintiff's psychological reaction to her injury and/or pain was making a significant contribution to her ongoing condition. This opinion appears to have been based on the absence of evidence (radiological or clinical: “Clinical examination reveals no objective neurological deficit affecting the lower limbs”[74]) which could account for the constancy and intensity of the pain reported and the extent of the disability described.
[72] DCB 31
[73] DCB 37.3
[74] DCB 37.2
89 Relevantly, after being taken to various aspects of Mr Dooley’s evidence, under cross-examination Dr Andrianakis,:[75]
[75] TN 110-114
Ø agreed that some of her presentation was due to non-organic factors but rejected the further proposition that the plaintiff’s presentation was predominantly non-organic;
Ø agreed that the acute aggravating factor had resolved;
Ø appeared to adopt the proposition that, as a result of this factor (the acute aggravating factor), it was reasonable to accept that the plaintiff would note some intermittent pain (“...There’s intermittent pain. There are good days and bad days and she still remains on narcotics and antidepressants’’);
Ø disagreed with the related propositions that the plaintiff’s prognosis was essentially dependent on her psychological condition and much of her symptomatology was psychologically-based;
Ø agreed that the plaintiff had developed a chronic pain syndrome;
Ø agreed, without further elaboration, that he had observed symptomatology of abnormal illness behaviour (‘’I’ve observed abnormal illness, I’ve seen her depressed, yes”);
Ø appeared to view any difference between Mr Dooley’s view (the plaintiff’s psychological reaction made a significant contribution to her ongoing condition) and his opinion to be one of degree (“Now the question is how much apportion to physical and psychological? That’s what seems to be the question at the moment (sic)”).
90 Returning to the psychologist evidence, I note that in October 2011 and again in December 2012, Mr Tsironis reported that his patient appeared genuinely traumatised by her predicament (I took this to indicate a psychological response to pain and impaired functioning in the performance of her day-to-day activities and in her role as a mother). He diagnosed injury-related Chronic Adjustment Disorder with mixed Anxiety and Depression.
91 Mr Tsironis’ advice to the solicitors in October 2011 was that the plaintiff met the criteria for Major Depressive Disorder and her psychological state contributed to her incapacity to engage in full-time or part-time employment. However, as his final report reveals, by late 2012, the psychologist considered this to be an unremitting psychological state, which rendered the plaintiff totally and permanently disabled for all work duties and called for ongoing therapy.
92 Dr Andrianakis’ evidence at hearing was to the effect that the plaintiff was not suffering from major depression.[76] He reasoned that, had depression been a primary condition, he would have prescribed a slow release serotonin reuptake inhibitor such as Zoloft or Cipramil.[77] This evidence notwithstanding, I also understood from Dr Andrianakis’ evidence that he believed his patient to be clinically depressed in the treatment of which he prescribed Zoloft between April 2012 and January 2013. This conclusion was informed by the following:
[76] TN 115
[77] TN 114-116
Ø Dr Andrianakis’ acceptance at hearing that the plaintiff's psychological condition contributed to her presentation and his agreement with the proposition that, on 30 or more occasions since February 2011, she had attended Mr Tsironis in the treatment of clinical depression;[78]
[78] TN 114
Ø the warning contained in the October 2011 report to the effect that ongoing denial of treatment and assistance (which I took to refer to funding for treatments such psychological therapy and physiotherapy), would lead to “…an adjustment disorder with depression which will make her rehabilitation nearly impossible";[79]
[79] PCB 36
Ø his evidence under cross-examination to the effect that, because there had not been funding for this, he had not referred his patient for psychiatric treatment of clinical depression; [80]
[80] TN 86
Ø his evidence that since 2010 (save for a 13 month period over which no medication was prescribed, commencing when the plaintiff fell pregnant in June 2011 and ending in July 2012) he had preferred Endep to other antidepressant medication, such as Zoloft, because Endep also relieved neuropathic pain and aided sleep;[81]
Ø his evidence that, within two months of the birth of the plaintiff’s daughter, on 23 April 2012 the plaintiff had presented with pain and "more depression caused by her disability and the lack of support by her Insurer",[82] in the treatment of which she was prescribed Zoloft. As mentioned, at hearing the doctor said the prescription of this antidepressant continued until 15 January 2013 when he again prescribed Endep, apparently because of the plaintiff’s complaints of back pain; [83]
Ø the evidence that prescriptions for Panadeine Forte and Prodeine analgesics had been resumed from June 2012, some four months after the birth, ostensibly in response to symptoms of ongoing back pain, reduced forward flexion and lower limb weakness.[84] However, it was not clear from the doctor’s evidence to what extent the doctor had relied on his patient’s report or on clinical examination when restarting and continuing prescription of strong pain killing medication between June 2012 and 24 October 2013, the plaintiff’s last attendance before the hearing.
[81] TN 82-87
[82] PCB 38
[83] TN 120-121
[84] PCB 38
93 As is also evident from his final written report, Dr Andrianakis blamed the plaintiff's current condition and the development of an adjustment disorder with depression on the insurer’s failure to actively manage her lower back injury ("the back has stiffened and the disability worsened"[85]) because the plaintiff, was no longer funded for ongoing therapies or for treatment at a pain management clinic. I accept as likely that the plaintiff is probably not a woman of means, although until this was raised by the general practitioner at hearing, none of the evidence indicated that funding for assessment and participation in a structured pain management program had ever been requested.
[85] PCB 39
94 The last of the specialist reports were obtained by the defendant from psychiatrist, Associate Professor Mendelson. He examined the plaintiff twice, on 20 September 2012 and on 14 August 2013.[86]
[86] DCB 1-37.4
95 Relevantly, in September 2012, among other things, Associate Professor Mendelson was informed that some four weeks earlier, the plaintiff had resumed taking prescription medications for pain relief (Panadeine, Panadeine Forte or the opiate, Endone depending on the severity of her pain). However, for reasons that are not clear from the evidence before the Court, on this occasion the psychiatrist was not also informed that, in addition to attending ongoing psychological therapy, since April 2012 the general practitioner had prescribed Zoloft.
96 The second report records prescription of Endep apparently taken: “on most nights to help her sleep”.[87] This was clearly not the only basis on which the medication was prescribed.
[87] DCB 21
97 In any event, Associate Professor Mendelson found no evidence of any diagnosable mental disorder or loss of work capacity as a result of any psychiatric illness or impairment, nor did he see the need for specialist treatment for any of the psychological symptoms, secondary to the complaints of persistent pain described by the plaintiff during assessment and the difficulties encountered at work after she complained of pain.[88]
[88] DCB 11 and 22-24
98 The evidence of the treating psychologist, to some extent supported by the earliest psychiatric diagnosis and the general practitioner’s evidence no doubt influenced the concession made on behalf of the plaintiff that there was “a psychological component to her presentation”.[89] However, at hearing, the plaintiff also sought to rely on the evidence of Associate Professor Mendelson, submitting that his evidence had not indicated the presence of a psychiatrically based chronic pain syndrome.
[89] TN 168
99 The plaintiff carries the burden of establishing that the consequences she alleges give rise to serious injury under paragraph (a) of the definition, are mediated by organic injury. Having read the detailed reports submitted by Associate Professor Mendelson, I was not satisfied that properly understood his reports assisted the plaintiff in proving that reportedly constant pain was substantially physically based.
100 In this application, commentary on the physical component of the plaintiff’s claim was not within the psychiatrist’s specialist remit. Associate Professor Mendelson’s detailed discussion of the radiology and specialist evidence,[90] nevertheless showed that, like Mr Dooley, he did not consider the plaintiff’s underlying physical condition to have involved disc rupture or prolapse or to be as serious as she may have been led to believe.
[90] DCB 9-11 and 22-23
101 In my view, despite the findings reported, Associate Professor Mendelson’s reports largely favour the defendant’s case by, among other things, indicating that the plaintiff’s current mental state (namely a mistaken belief in the seriousness of her physical condition) remains a significant impediment to her progress. In this psychiatrist’s opinion, if the plaintiff’s physical condition, the results of the radiology and her occupational limitations were accurately explained to her and the plaintiff was taught non-pharmacological methods of pain control (presumably by specialist clinicians in a structured multidisciplinary pain management program) she was psychologically (and with retraining probably physically) fit for suitable employment.
The film
102 As mentioned, this was obtained on 24 July 2012 over 5 hours of surveillance.
103 Prior to being shown the film, under cross-examination, the plaintiff recalled socialising at the Watergardens Hotel on “maybe” three or four occasions. This was the one of the locations at which the plaintiff and her husband were filmed on 24 July 2012 while entertaining visitors from Sydney. Surprisingly, the plaintiff readily recalled that she last attended the hotel in July 2012.[91]
[91] TN 66
104 The film shown commenced from 11.32 am and concluded at approximately 4.35 pm. The plaintiff, her baby and two friends were driven by her husband to the hotel (some 10 to 15 minutes from the plaintiff’s home). They were seen standing and waiting before being seated for a meal. The group left the hotel at about 2.22 pm, after which the plaintiff entered the driver’s seat, without apparent restriction, and drove to a coffee shop located in a shopping centre.
105 The group were filmed seated at the coffee shop from between approximately 2.33 pm and 3.19 pm until the plaintiff, her husband and baby departed by car at about 3.27 pm. They then stopped at a supermarket. Over a 15 to 17 minute period the plaintiff’s husband shopped, whilst the plaintiff, who was seated in the back seat of the car entertained the baby. The plaintiff’s husband then drove the family home. He lifted and carried the baby into the house. The plaintiff carried a toy.
106 The film clearly captured the plaintiff in a happy and sociable mood.
107 I think it fair to accept that, apart from the length of time the plaintiff was seated throughout the day (whether in a car or for a meal and coffee and cake) and her generally good and animated presentation throughout, the film did not capture the plaintiff performing any particular activity in a way that specifically contradicted her claimed limitations. For instance, as senior counsel submitted, only her husband lifted or carried the baby and, instead of the plaintiff standing and cooking at home her guests were taken to the hotel and later to the café/patisserie.
108 The plaintiff was mostly seen walking slowly (but so were the other members of her group). She entered and exited the car on different occasions and twisted when seated in the café without evident restriction. However, toward the end of the period spent in the café, the plaintiff held her back on a number of occasions and, after rising slowly from a seated position, the plaintiff held her hand to her right lower back and walked somewhat stiffly from the café.
109 As mentioned, despite making allowance for variations in the level of the plaintiff’s pain and disability from day to day, I was struck by the contrast between the plaintiff’s presentation in Court over a three day period and her presentation in the film.
The nature of the injury and the need to 'disentangle'
110 I was not persuaded by Mr Barratt's evidence, on which the general practitioner also appeared to rely,[92] that the circumstances in which the incident occurred, were such that the work related injury involved rupture of discs at two levels of the lower spine.
[92] TN 109
111 Irrespective of whether the radiological evidence of changes to the disc at the L5-S1 level is properly described as a minor broad-based prolapse or generalised bulging, other specialist evidence to which I have referred suggests that the injury suffered likely involved aggravation of a degenerative disc without there being objective evidence of compression or irritation of the S1 nerve root.
112 As mentioned, I could not readily reconcile Dr Andrianakis’ explanation of the cause of his patient’s pain and disability with, particularly, the current specialist evidence.
113 Moreover, I formed the view that, after more than three years of conservative treatment, Dr Andriankis’ opinion that his patient’s reportedly severe and debilitating condition was mainly due to organic factors was to a large degree informed by the plaintiff's presentation and ongoing complaints of pain and disability. This is not a criticism of the doctor. However, where as in this case, he gave no evidence of recent clinical examination, the specialist interpretation of the radiology and particularly their clinical findings, should be afforded real weight in determining whether the complaint of constant pain and ongoing disability was substantially mediated by an organic condition.
114 As to the nature of the injury suffered, I have preferred the up-to-date specialist evidence adduced from Mr Brownbill, who also considered the earliest of Mr Dooley’s reports and from Mr Dooley, who probably did not have access to Mr Brownbill’s final report.
115 Between 2011 and 2013, both specialists examined the plaintiff on multiple occasions and accessed a range of other materials prior to submitting their reports. In keeping with the opinion expressed by Mr D’Urso within months of the incident, their evidence suggests a likely work-related aggravation of an already degenerative disc and a likely permanent physical incapacity for the plaintiff’s pre-injury employment as a picker/packer or for employment other than work commonly referred to as ‘light’ or sedentary work. Mr Brownbill, nevertheless, cautioned that any attempt to return to work should be managed with care (“such a return should be commenced in a graded fashion under close medical supervision”[93]).
[93] PCB 82
116 I did not understand Mr Brownbill’s evidence to indicate the extent to which impaired functioning of the plaintiff’s lower back contributed to and disabled the plaintiff in the performance of her day-to-day activities, although I infer from his evidence as a whole that the impairment of the plaintiff’s physical capacity for unrestricted work would also be reflected in her other activities.
117 However, as Mr Dooley explained (and Dr Andrianakis appeared to agree), the acute aggravating factor probably has resolved and the plaintiff now faces the prospect of intermittent lower back pain and some leg pain. Where they differed was in their assessment of the extent to which psychological factors are responsible for the level of pain and disability reported.
118 To summarise then, I was satisfied that the lower back condition had not fully resolved, as was postulated by Dr Clark in September 2010 and, at the very least, the restrictions placed on the plaintiff’s work activities would apply equally to her domestic, social and recreational activities.
119 As to the role of psychological factors, it was conceded by the plaintiff’s counsel that these were contributing to the plaintiff’s presentation. Treating doctors and medico-legal experts have all commented on the likely role of non-organic factors in the plaintiff’s presentation.
120 I have preferred the diagnoses of the treating psychologist, to whom the plaintiff reported ongoing and disabling physical pain. Over a period of more than 2½ years, he has had an opportunity to assess his patient’s psychological status. As mentioned, Mr Tsironis diagnosed Chronic Adjustment Disorder with mixed Anxiety and Depression and assessed his patient as totally and permanently psychologically disabled for all work duties. This evidence alone suggests the presence of a significant psychological disability, without necessarily defining the extent of any contribution made by organic factors to the plaintiff’s lower back impairment.
121 In the circumstances described, I could not be satisfied, on the balance of probabilities, that there existed a substantial organic basis for ongoing injury-related impairment of the plaintiff’s lower back. Rather, the evidence, taken as a whole, suggested that reason for the severity of the plaintiff’s reported symptoms and impairment, more than three years after the incident, was not substantially organic.
122 Consequently, in this application the plaintiff was required to disentangle the physical contribution to the consequences alleged from the psychological contribution.
123 It is convenient to commence by considering the evidence concerning the economic loss claim.
Loss of Earning Capacity Consequences
124 I have already mentioned in passing the statutory requirements for establishing a permanent loss of earning capacity, productive of financial loss of 40% or more. The ultimate concern in this case is whether the plaintiff has a physical capacity for work which, if exercised in suitable employment, would result in her earning $507 gross per week or more.
125 The plaintiff was also required to establish any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.
126 At 36 years of age, the plaintiff evidently believes that by reason of her work-related injury she remains totally and permanently incapacitated for all employment (both physically and psychologically).
127 In her final affidavit, sworn shortly prior to the hearing, the plaintiff deposed that she wanted to work and missed the financial independence and security working had provided.[94]
[94] PCB 13.6
128 The plaintiff further deposed that, whilst she is able to use a computer, she did not have one at home and had no experience in working in an office or corporate environment. Her only work history since applying for residency in Australia is as a picker/packer with the defendant. However, as already mentioned, in 1998, the plaintiff obtained a Certificate in Financial Services/Accounting. In her affidavit and oral evidence, the plaintiff repeatedly described this as a book-keeping qualification.
129 As mentioned, on 15 August 2012, the plaintiff was interviewed at the request of the defendant's solicitors by CoWork occupational therapist, Joanne Bryant. Ms Bryant later submitted the 'Occupational Opinion and Labour Market Analysis Report, dated 18 September 2012.
130 Judging from the tenor of a letter dated 28 August 2012, written by Dr Andrianakis to CoWork, the interview with Ms Bryant had generated complaint from his patient about comments allegedly made, which were either critical of the plaintiff’s treating doctors or of the plaintiff.[95]
[95] PCB 37
131 These matters notwithstanding, under cross-examination, the plaintiff agreed that, when interviewed by Ms Bryant, as reported, she expressed enthusiasm about a possible future career in book-keeping and had indicated a willingness to consider retraining in the future.[96]
[96] TN 37 and 46
132 The plaintiff was not, however, able to recall having, as also quoted, expressed interest in completing a Certificate IV ("… I love book-keeping, I'd love to do a Certificate IV"[97]). This referred to a six month Certificate IV TAFE course in either accounting or business, which Ms Bryant reported would build on the plaintiff's vocational strengths and help equip her to pursue employment in clerical duties. I concluded that, as reported, the plaintiff probably also discussed and had shown interest in pursuing further certificate studies because these qualifications were needed in some of the areas of clerical work canvassed during the interview.
[97] DCB 71
133 In her report, Ms Bryant recorded that during their discussions the plaintiff had shown interest in working in bookkeeping/accounting, in a bank, in a community pharmacy (she had a evidently also expressed some interest in completing Certificate III or IV to qualify to dispense medication and prepare Webster Packs) and in working in community services/social work (namely working with her ethnic community).[98]
[98] DCB 66
134 Based on the information she received, which relevantly explored matters such as the plaintiff's education and transferable skills, Ms Bryant recommended the plaintiff consider work as a Bank Teller, an Inquiry Clerk or an Accounts Clerk and that she also consider completing the six-month TAFE course described earlier.[99] As mentioned, completion of a Certificate IV in business administration was recommended for the Inquiry Clerk position and a Certificate IV in accounting was recommended for a position of Accounts Clerk (Entry Level). The reported average gross weekly earnings in each of these positions was $808, $1026 and $1052 respectively.
[99] DCB 67
135 It was apparent from evidence given by both the plaintiff and Dr Andriankis that they had not discussed any of the positions recommended by Ms Bryant.[100]
[100] TN 48 and
136 Dr Andrianakis told that Court that he did not know what training or qualifications the plaintiff had, although he knew she wanted to return to work and he believed that in the future this would involve clerical or administrative work which allowed her the freedom to move around.[101]
[101] TN 117
137 Dr Andrianakis did not, however, envisage a return to work in the near future and, certainly, not before the plaintiff received what he called “proper rehabilitation” and treatment.[102] This appeared to refer to further therapies such a physiotherapy and possibly also to the plaintifff’s participation in a pain management program. Notably, other than Mr Brownbill’s recommendation that the plaintiff attend a pain management clinic, neither he nor Mr Dooley advocated a return to long-term or regular treatment by way of physiotherapy.
[102] TN 117-118
138 The plaintiff's evidence during cross-examination, indicated that since the failed attempt to return to work in July 2010, she had not considered herself capable of undergoing retraining or of looking for any kind of employment. Interestingly, she attributed this to both physical and psychological factors: pain, stress and tiredness. [103]
[103] TN 51
139 Based on all of the evidence and, in particular, the specialist evidence of a likely retained capacity for light or sedentary work, I could not be satisfied that the plaintiff does not have a physical capacity for suitable employment which, if exercised would result in her earning more than 60% of her pre-injury earnings. Nor could I be satisfied that the plaintiff's physical condition necessarily prevented further occupational rehabilitation or retraining for alternative employment. Accordingly, by applying the test under the Act, notwithstanding likely permanent work-related impairment of the plaintiff's lower spine the plaintiff has not establish a permanent loss of earning capacity productive of financial loss of 40% or more.
140 As the plaintiff is not entitled to leave in respect to loss of earning capacity consequence, separate consideration of the pain and suffering component of her application was also required.
Pain and Suffering Consequences
141 As was explained by the Court of Appeal in Haden Engineering Pty Ltd v McKinnon,[104] the evaluation of the pain and suffering consequence requires consideration of the plaintiff's experience of pain and the disabling effect of pain on her physical capabilities (including her capacity for work) and enjoyment of life.
[104] [2010] VSCA 69 [9]-[17] and applied in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 and more recently in Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
142 Evidence of the intensity and frequency of pain (in this case from the plaintiff, her sister and doctors), the treatment received or recommended and any objective evidence as to the disabling effect of pain is important to any proper evaluation of the plaintiff's experience of pain. The evaluation of the disabling effect of pain called for consideration of the extent to which pain continues to limit this plaintiff's activities and to interfere with her enjoyment of life.
143 In this regard, the significance of what is lost may be informed to some extent by what the plaintiff has retained. For instance, as mentioned, the plaintiff's sister emphasised the contrast between the plaintiff’s life before and since the incident.
144 In her affidavit, Ms Ghidei attested that prior to her sister’s injuries (which I took to refer to physical and psychological injuries because her application until hearing related to both) the plaintiff had been a happy, hardworking and sociable young woman, who looked forward to buying a home and having a family. The plaintiff was, she said, house proud and someone who “liked to cook for friends and family and host them in her house”.[105]
[105] PCB 13.8
145 The plaintiff's evidence (to which her sister’s evidence lent some support) and, to a lesser extent, the reports made to doctors in the years since the incident, reference the areas of the plaintiff's life impacted by pain and disability. These included, employment, sleep, mobility, domestic duties, sexual life, recreational and social activities and the plaintiff’s enjoyment of life. The plaintiff’s additional concern about the possibility of surgery in the future was not reflected in any of the current medical evidence.[106]
[106] PCB 11
146 Other than Mr Barrett, each of the doctors have expressed their belief that psychological factors contribute to the plaintiff’s presentation. The specialist evidence, in particular, indicated a need to examine the extent to which permanent impairment of the plaintiff’s lower back contributed to the pain and disability, so described.
The experience of pain
147 As to her experience of pain, the plaintiff’s evidence was to the following effect: [107]
[107] PCB 13.2
Ø While experiencing “good days and bad days’’, she suffered constant pain affecting her lower back, legs and groin area. There is no current clinical evidence to explain the numbness also reported on the left side of the plaintiff’s foot, although the film taken on 24 July 2012, showed that having spent some hours eating and socialising (mainly seated), there were some back holding gestures and restricted movement. These matters suggested some level of likely physical lower back discomfort;
Ø A hot water bottle applied to her lower back, sometimes twice daily and resting approximately 3 to 4 times daily only provided temporary pain relief;
Ø Treatment consisting of daily pain-relief medication (2 to 3 Panadeine Forte tablets, 1 to 2 Panamax tablets and one Endep tablet, the latter taken nightly because it made her drowsy[108]) and 5 government funded physiotherapy sessions each year evidently failed to control pain which, among other things, disturbed the plaintiff’s sleep 2 to 3 times each night. At hearing, the plaintiff confirmed that she ceased taking medication during her pregnancy and while breast-feeding.[109] My understanding of Dr Andrianakis’ evidence was that, since 2010, other than during the period of the plaintiff’s pregnancy, Endep had been prescribed in the treatment of depression but mainly in the treatment of neuropathic pain and to aid the plaintiff’s sleep.[110] Based particularly on the specialist evidence obtained since the birth of the plaintiff’s daughter, I could not be satisfied that the nature of any ongoing organic condition justified the resumption of regular therapies such as physiotherapy and hydrotherapy or the daily use of strong pain killing medications in the longer term.
[108] TN 60
[109] TN 44
[110] TN 82, 87 and 115
148 None of the specialists were cross-examined. In the circumstances, given that the current specialist evidence did not offer any neurological or orthopaedic explanation for constant back and leg pain or the level of pain reported, I was unable to form a clear understanding of the intensity and frequency of the plaintiff’s pain levels due to ongoing organic injury. This is not to deny that, from time to time, the plaintiff’s lower back condition, could lead to bouts of lower back pain and perhaps some leg pain in the treatment of which the plaintiff required pain-relief medication.
The disabling effect of pain
149 It is convenient to discuss the disabling effect of pain and the extent to which it interferes with the plaintiff’s ordinary activities and enjoyment of life, together. In her affidavit and oral evidence, the plaintiff described a range of activities impacted by pain and disability. These involved, the plaintiff said:[111]
[111] PCB 13.2-13.6
Ø Restrictions on her capacity to bend, stoop, walk, run, stand and sit for long periods. Under cross-examination the plaintiff acknowledged that from time to time she drove with her husband and child as passengers, to the local shops and to the fellowship home where bible studies and prayer meetings were held. The plaintiff also confirmed that, in August 2012, she had flown with her baby and her pastor’s wife to visit a friend in Brisbane, although, in her affidavit, she deposed that the plane trip had been very uncomfortable;
Ø Struggling to care for her young daughter. This involved not being able to run after, play with or hold her daughter for long periods. Consequently, the plaintiff said that she relied on her husband and her sister for assistance. The latter helped her shop and perform other day-to-day tasks. The sister’s affidavit evidence corroborated this claim, indicating, among other things, that from her own observation the plaintiff had difficulty lifting her child from her cot or supervising her play in the park.[112] The plaintiff, nevertheless agreed that when her husband was not at home she regularly lifted her daughter in and out of her cot, albeit with pain. However, the plaintiff denied performing various activities one would expect a mother to perform. For instance, even where, as in this case, I have accepted that bending or prolonged standing is probably restricted the claim that back pain had prevented the plaintiff from ever bathing her infant was implausible.[113] This is not to deny that, the plaintiff might experience some physical discomfort should her circumstances at home require the plaintiff to bend low into a bath tub to bathe a child, rather than work at waist height. Otherwise, having regard to the medical evidence I could see no specific physical barrier to undertaking this type of activity;
[112] PCB 13.10
[113] TN 47
Ø An inability to perform domestic duties and socialise as in the past. The examples given included no longer being able to cook elaborate and traditional dishes for her family or for guests and, having commenced a task often requiring her husband to complete this. Under cross-examination the plaintiff agreed she still socialised. In this regard, in addition to her sister’s evidence, as mentioned, the plaintiff relied on the film of her attending a hotel with her interstate guests as corroborative of her claim that she no longer cooked elaborate and traditional dishes for her family or for guests. Whilst I accept that the restrictions imposed on the plaintiff’s physical activities might impede her ability to attend to domestic tasks and entertain at home I could not be satisfied of the extent to which impaired functioning of the plaintiff’s lower back impacted these activities; [114]
[114] TN 66
Ø Restrictions on shopping, driving and travel. The plaintiff still shops, drives (albeit with difficulty) and, as mentioned, in August 2012 she travelled by plane to Brisbane with a companion. However, the plaintiff said when shopping she required frequent rest breaks. She also described increased pain from prolonged sitting and a very uncomfortable journey by plane, although as the film showed, when socialising the plaintiff demonstrated a relatively good sitting tolerance in the 40 to 45 minutes spent in the café before she showed signs of discomfort;
Ø Social withdrawal. The plaintiff said she still attended meetings where she was able to lie down, such as bible studies (these were held at either her own home or at the pastor’s home on Thursdays for 1 to 2 hours) with about 5 other people and prayer meetings (fellowship meetings on Fridays for 2 to 3 hours, held at someone’s home) with about 10 people, However, the plaintiff claimed to be unable to attend church because she could not sit for the time required. I understood from the answers given during cross-examination that the plaintiff’s connection to her church was an important part of the plaintiff’s life and, until she became pregnant, the plaintiff had attended church services, which she said ran for 2 to 3 hours, because she was free to sit, move around or lie down at will. The plaintiff had ceased going to church once her pregnancy advanced. The plaintiff said she wanted to attend church to help her cope with depression and pain. She had not done so since the birth of her daughter in February 2012 due to pain “all the time” and her inability to sit or stand.[115] I was not satisfied that, physical impairment of the plaintiff’s lower currently prevented attendance at church. As my discussion of the film shows, by 24 July 2012, the plaintiff appeared capable of sitting in relative comfort over an extended period when socialising and eating with her husband and friends at a hotel and, afterwards, in a local café/patisserie;
[115] TN 60
Ø Sleep disturbed by pain 2 to 3 times each night, with difficulty finding a comfortable position in bed;
Ø Fear of surgical intervention in the future. As mentioned, this fear is probably unfounded because none of the doctors have recommended or indicated any need for surgical intervention now or for the foreseeable future;
Ø The impact on her relationship with her husband. The plaintiff reported a loss sexual intimacy because intercourse increased her pain and this had taken all the joy out of this activity;
Ø The impact on the plaintiff’s personal presentation. The plaintiff reported she could no longer dress up with heels as in the past;
Ø Employment. As mentioned, the plaintiff’s evidence was to the effect that she wished to return to work and she missed the financial independence and security work provided. The likely loss of her physical capacity to return to her pre-injury work or to work other than lighter or sedentary duties due to compensable injury is a factor for which I have made allowance in my assessment of the pain and suffering and loss of enjoyment of life consequence.
150 In assessing whether the pain and suffering consequence of the compensable lower back injury meets the “very considerable” test, I was required to consider globally all of the pain and suffering experienced by the plaintiff to which this injury materially contributed.[116]
[116]Sutton op. cit. at paragraph 114
151 I have summarised the evidence relating to the alleged impact of ongoing impairment of the plaintiff’s lower back on her day-to-day activities and her enjoyment of life. As is evident from the various comments made in passing, I experienced considerable difficulty in isolating and identifying the contribution made by physical impairment to the consequences alleged. This is not to deny that the disabling consequences and the consequences involved in the plaintiff’s experience of pain as a result of impairment of her lower back may not be significant when contrasted with the plaintiff’s activities and presentation before the incident.
152 However, the plaintiff has not discharged her burden of proof under the Act, because I could not be satisfied of the extent to which compensable organic injury contributed to the consequences described and, it follows, I could not be satisfied that, when compared with other cases in the range of possible impairments, the pain and suffering consequence could be fairly described as being more than significant or marked and at least very considerable.
153 The plaintiff’s application for leave is dismissed.
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