Gill v Victorian WorkCover Authority

[2022] VCC 808

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-18-05727

WENDY GILL	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and 19 May 2022
DATE OF JUDGMENT:	7 June 2022
CASE MAY BE CITED AS:	Gill v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VCC 808

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – impairment of the lumbar spine – pain and suffering only – range – non-compensable conditions

Legislation Cited:      Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s134AB(38)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Zhang v Joy Foods [2016] VSCA 199; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326

Judgment:                  Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J C Richards QC with Mr Y C Chen	Slater and Gordon
For the Defendant	Ms S De Guio with Ms L Burke	IDP Lawyers

HER HONOUR:

1This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the Department of Human Services (“the employer”) on 19 August 2006 (“the said date”).

2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3The plaintiff brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. The body function relied on was the spine.

4A serious injury application in relation to the right hip, Chronic Pain Syndrome and psychological injury was withdrawn at the commencement of the hearing.[1]

[1]        Transcript (“T”) 1

5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6The impairment of the body function must be permanent.

7The plaintiff bears an overall burden of proof upon the balance of probabilities.

8By subsection (38)(c) of the Act, the 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”.

9I 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.

10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Peak Engineering Pty Ltd & Anor v McKenzie[3] in reaching my conclusions.

[2](2005) 14 VR 622

[3][2014] VSCA 67; Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199

11The plaintiff relied upon two affidavits and was cross- examined.  In addition, she relied on an affidavit affirmed by her friend, Jo Wagner, on 16 May 2022.  Both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

12In issue was range and the contribution of non-compensable conditions to the plaintiff’s current condition.[4]  It was also in dispute whether any hip condition was related to the back.[5]

[4]Peak Engineering Pty Ltd & Anor v McKenzie (ibid)

[5]T9; T91

The Plaintiff’s evidence

13The plaintiff is presently aged sixty, having been born in January 1962.  She left school during Year 10. 

14In her early twenties, she struggled with drug addiction, which she overcame when she was about twenty-two.  She tried to avoid medication as much as possible because of this history. 

15In about 1980, she was involved in a transport accident in which she suffered injury to her back.

16Around 2012 to 2013, she suffered injury to both shoulders working with the employer.  She had treatment to both shoulders, including an arthroscopy decompression and bursectomy of her right shoulder in July 2013.

17In about April 2014, she injured her left knee, and was required to wear a brace for a period.

18In August or September 2016, she was diagnosed with MALT non-Hodgkin’s lymphoma in both eyes and underwent chemotherapy and radiotherapy for a year after October 2016.  As of July 2018, she was in remission.

The incident

19On the said date, while helping a client shower, the plaintiff felt a sudden pain in her lower back (“the incident”).  The pain progressively worsened, and on 21 August 2006, she filled in an Incident Report.

20She attended her general practitioner (“GP”) on 28 August 2006, who sent her for physiotherapy, and told her to take some time off.  Analgesics and anti-inflammatory medication were also prescribed.

21On 29 August 2006, the plaintiff lodged a WorkCover claim.  She started physiotherapy and hydrotherapy, and also commenced Pilates.  She had a lumbar CT scan in October 2006, which she understood showed a small focal disc herniation compressing the left L5 nerve root.

22She returned to work and was initially placed working in a disability support house where she did not have to perform heavy personal care duties.  This helped manage her back pain.

23In early 2007, she travelled to Turkey, India and Israel on a pre-planned holiday.  She struggled with the long plane trip because of her lower back pain.

24Her back pain continued, and in May 2007, it had begun to be aggravated by prolonged standing and with bending or twisting.  She tried to implement strategies in the workplace to manage her back pain while doing her job.

25Throughout 2008, she did a self-managed exercise program to try and strengthen her back muscles.  She also had regular physiotherapy.  Her GP recommended she get regular soft tissue massage, along with physiotherapy.  Further, she had supervised hydrotherapy weekly, which helped manage her pain. 

26She continued to suffer restrictions and remained unable to perform some duties at work providing personal care to her clients.  In particular, her pain was aggravated by bending and twisting.  She suffered regular flare ups of her back during this period, as well as having some periods when her back pain was less.

27Her back pain continued and in about mid-2009, she began using a TENS machine at Dr Preston’s suggestion and was able to reduce her amount of analgesia.

28About that time, the plaintiff was transferred to a house where the clients required more intensive support.  She took this role because she was advised there were no other positions available, however, her duties increased her back pain significantly and she suffered increasing flare ups. 

29In October 2009, she attended Dr Preston because of these flare ups, and because of her restrictions and pain, she was considering leaving work in disability care and retraining in an area that would not aggravate her back in the same way.  Dr Preston advised her to undergo vocational counselling and explore other work options.

30The plaintiff continued to suffer from a constant dull ache in her lower back, with greater pain on the left side.  The pain increased in intensity when she had a flare up.

31On 1 February 2010, she had a lumbar CT scan.  She stopped receiving medical treatment for her back around May 2010, when funding ceased.  This situation worsened the pain and she continued to take anti-inflammatories and started self-managed exercise.  She was able to access some physiotherapy through Medicare and had some massage that was less expensive.  She also bought a massage chair and used heat packs.  On 26 August 2010, she had a lumbar MRI scan. 

32In November 2010, she was referred to rheumatologist, Dr James Harkness.  He gave her a cortisone injection into the left sacroiliac joint to try and relieve her symptoms.  This provided some short-term improvement in her pain, but it soon worsened after some weeks.

33She could not remember him telling her there was not much seriously wrong with her back in terms of either a disc prolapse or nerve root compression.  She could not remember telling him it was somewhat of a shock that she did not have a serious condition.  She could not remember being annoyed with his positive report, not wanting his opinion being made available to her insurers, “no, not at all”.[6] 

[6]T38

34She denied she told Dr Harkness she did not have any pain in her back or leg.  Rarely, if at all, would she not be in pain.  She then said she did not recall this examination.  She did not recall having a full range of pain-free lumbar movement that day.[7]

[7]T74

35Eventually, she felt her GP was not able to assist her any further, so she stopped attending him regularly for her back.  She did not want to be prescribed heavy analgesics, so she continued to try and manage her lower back pain with massage, anti-inflammatories, heat packs, self-managed exercise, some medication and also, regular hydrotherapy.

36Sometime around 2011, she began to develop right upper thigh numbness, which gradually worsened, and by mid-2013, there was a patch of her right upper thigh that had completely lost sensation.  She had a further lumbar CT scan.

37Around 2013, she stopped working in disability care.  Her lower back pain did not abate however and continued to cause her restrictions and interfere with activities of daily living.

38As of July 2018,[8] her lower back pain had remained the same for the last few years.  It was continuous, and she experienced it daily.  It was a deep, heavy aching pain that would not go away.  She found the pain debilitating and it restricted her ability to perform certain acts.  Sometimes, if she moved too much or bent down, she suffered a shooting pain and would then take medication to try and control the pain.

[8]        Plaintiff’s first affidavit affirmed on 27 July 2018

39She was then taking Panadol Osteo as required, activity related.  On average, she took it three or four days a week, twice daily, as she did not want to get a stronger prescription because of her history with drug addiction.  She could no longer stand in one spot for an extended period because it caused lower back pain.

40When she was invited to an event where she had to stand for a long time, such as a concert or pub, she tried to avoid it.  She also struggled to get down to ground level and back up again without pain, so avoided events like picnics.

41Sleep was disrupted because of her lower back pain, and she tossed and turned in the night and woke a few times every night.  She struggled with household tasks that required bending at the waist.  She bought a robot vacuum cleaner and a swivel stand up mop to help make cleaning easier.  She struggled to make the bed, and avoided doing so, as it caused an increase in pain.

42Prior to her back injury, she was a horticulturalist, and at one time, had her own gardening business.  As a result of her injury, her ability to garden was restricted.  Her pain increased if she bent down to weed, and if she had to do it, she took painkillers to manage.

43She continued to receive massages as she could not afford to pay for physiotherapy and hydrotherapy, and still performed self-managed exercises and used heat packs.

Current situation

44The plaintiff is currently on Newstart and is applying for a disability pension.[9] 

[9]T10

45She continues to suffer from lower back pain on both sides, which is her main problem in terms of physical pain.  It is constant and varies in severity.[10] 

[10]        Plaintiff’s affidavit affirmed 16 May 2022

46It is flared up easily by prolonged sitting, repeated bending or heavy lifting, and she also gets intermittent radiating numbness or tingling into her right leg.  Her back pain sometimes travels up to her mid back and also causes pain in the neck area, but generally is more troublesome in the lower back.  It is present even at rest but flared up by activity.

47When the pain is severe she has spasms, very sharp spasms in the lower back.  If she stands too long she has a numbness from the knee to the hip.  It can be shooting pains and then it goes into numbness.[11] 

[11]T84

48By August 2019, she was referred to a pain physician, Dr Neels Du Toit, for treatment of her back pain.  She also spoke to him about hip pain, which she had developed a little earlier.  The hip pain varied in intensity and often seemed to correlate with lower back flare ups.  She had since been told that the right hip pain was partly referred from her back condition and partly due to right trochanteric bursitis.

49On 15 August 2019, Dr Du Toit organised a lumbar medial branch block at L3-4, from which the plaintiff derived no benefit.  On 15 September that year, she had bilateral sacroiliac joint injections, after which she felt some relief in her back and hip pain, although much of that wore off after a while. 

50Due to the continuing back and hip pain, she had a right L4-S3 radiofrequency denervation on 11 December 2019, and a left L4-S3 radiofrequency denervation on 23 December 2019, both under Dr Du Toit’s supervision. 

51In March 2020, she saw Dr Robin Hunter at Epworth Rehabilitation regarding back and hip pain.  She was diagnosed as having trochanteric bursitis of the hip, along with gluteal tendinosis.  Throughout 2020, she had pain management at Epworth Rehabilitation Brighton, which included physiotherapy, hydrotherapy, assistance from a dietician and psychology sessions. 

52The plaintiff had an ultrasound right trochanteric bursal injection in March 2020.  She had an ultrasound and x-ray of her right hip in February 2020, which revealed mild trochanteric bursitis.

53In April 2020, the plaintiff saw Dr Du Toit again.  Her back pain had improved overall to an extent following treatment, but remained problematic, along with hip pain.  He recommended she have a steroid injection in her right hip, which she did, and on 21 May 2020, had a PRP platelet rich plasma injection into her right hip.  She had subsequent injections via Dr Peter Lewis, following which she felt a degree of improvement in her right hip, and hip pain nowadays is usually not as bothersome as her lower back pain.

54Current treatment includes physiotherapy and hydrotherapy of varying frequency.  At times, she has also used a TENS machine.

55She takes Panadol or Panadol Osteo, several tablets a day, most days of the week for, in order of prominence, back pain and hip pain.  The dosage depends, usually, on her level of activity.  She often takes painkillers before bed to help her sleep but avoids taking prescription painkillers because of her previous drug addiction.  Panadol Osteo is not enough for her to control her back pain.[12]

[12]T60

56Because of her inability to take painkillers, her struggle has been shocking.  She knows what her life used to be like.  Pre-incident, she was very active and pushed herself to the limit.  She still does, but there are consequences of pain.  At times, she wakes up crying and there is nothing she can do.[13]

[13]T90

57Despite this treatment, she continues to struggle with various tasks, including vacuuming, sweeping, mopping and bending over to make the bed.  After undertaking physical activity, her back pain often flares to the point that it is severe.  Simple personal care tasks like showering can be difficult, because she has a reduced bending tolerance.  She does not get a good night’s sleep due to back and right hip pain.

58She lives alone and she has to do a lot of the domestic tasks herself.  She does the best she can and has to pace herself, and often just has to endure a flare up, which can come on immediately after activity, or is sometimes delayed.  After flare ups she can be laid low for the next few days.  At times, her former sister-in-law, Jo, comes over to help.

59The plaintiff’s ability to undertake physical activities is also restricted, to a lesser degree, by her right shoulder and left knee condition, but the main problem she faces day to day is back pain in terms of her activities. 

60At times, she has tried to push herself to do more physically strenuous tasks, such as self-defence classes, but that activity tended to cause flare ups.  She tries to take care of, and walk her dog, and has tried various other forms of exercise, such as Tai Chi.  On good days, she can manage, but on bad days, these activities lead to a significant increase in pain.

61Earlier, in 2022, she consulted psychiatrist, Dr Tobie Sacks.  She struggled with some symptoms of depression arising from her back pain, and the pain has had a great effect on her mental health.  At times, she feels despondent and very distressed, and the stress of having to deal with her back pain causes her to become irritable and frustrated. 

62Fortunately, her lymphoma remains in remission, and she does not require cancer treatment or medication, and has check-ups every six months.[14] 

[14]T79

63As a result of the chemotherapy, she has had some ongoing cognitive difficulties, which have been described as “chemo brain”, a common effect for cancer survivors.  She has some difficulty remembering details at times, and occasionally mixes up dates or names.  She tires easily after a period of concentration and sometimes forgets appointments. She has difficulty keeping up complex conversations when she becomes tired.  It causes her to become fatigued. However, socialising is “fine”.[15]

[15]        T29

64She has had some assessments and monitoring by Caulfield Hospital, where she also completed a cognitive rehabilitation course in about early 2019.

Left knee

65In about 2019, she had a fall, injuring her left knee, which she had been subsequently told resulted in a meniscal tear.[16]  In about September 2020, she consulted surgeon, Mr Shay Zayontz, about her knee pain, and he suggested she should try conservative measures, such as a cortisone injection.  She had one under his guidance and received an excellent initial result, although some of the pain returned after a while. 

[16]T42

66She has since had steroid injections and further PRP injections in her left knee, with some improvement.  She feels the knee continues to be slowly improving.  Knee pain is not constant.  Some days the knee flares up with activity, whereas, other days, it is manageable, and it is not nearly as problematic as her lower back pain.

Other conditions

67In about 2017 or 2018, the plaintiff developed shingles, with complications leading to the development of post-herpetic neuralgia.  She has since suffered episodes of nerve pain affecting her left eye, forehead and parts of her face and scalp.  The pain comes and goes and varies in intensity, but is mostly focused around her face.  At times, it can become very bothersome, but at other times, it is manageable.  She takes Tegretol tablets for nerve pain. 

68She has also previously had cataract surgery to both eyes and will need a further procedure shortly.

Shoulders

69The plaintiff had some ongoing right dominant shoulder pain and restriction following her 2013 work injury.  Following surgery in 2013, she returned to Mr Brendan Soo in about 2014 or 2015, who recommended an ultrasound-guided steroid injection.  She derived some relief from it, but it did not cure the condition.  He told her to rely on conservative treatment and self-management and advised against further surgery.

70Both shoulders have improved significantly in the past ten years or so since the work injury.  She still has some ongoing pain and restriction in her right shoulder at times, which affects her ability to do heavy lifting or strenuous manual tasks with her right arm, but the restrictions are not as great as they were in 2013 and 2014.

71She can manage her shoulder condition for the most part by avoiding really heavy tasks or alternating arms if she has to undertake manual chores.  Her lower back is the primary source of restriction when doing household tasks and other physical activities.

Post-incident work

72After the incident, the plaintiff returned to work in the same role as a disability support worker on full-time hours with restricted duties, “no personal care with clients, and limited house duties”.  That meant she was not showering or toileting clients.  She was doing very restricted mopping or making beds.[17]  She was working in one particular home with six adults and that was on the condition she had restricted duties due to her injury.  Her work could be cooking, talking to clients, driving the bus, picking them up from placements, bringing them home, helping them with meals or just sitting down with them and feeding them.[18]

[17]T11

[18]T12

73She thought she was in the house on these limited duties for about eighteen months.  She then did casual work on limited duties because the employer knew she had a back injury.[19] 

[19]T14

74She agreed at some stage before her right shoulder injury in March 2013, she had been able to return to, essentially largely, her pre-injury work, albeit, she had to be careful with some of the lifting and pushing.[20]  Prior to injuring her shoulder, the employer knew she had a back injury, and she only did restricted duties and the staff helped her out.[21]

[20]T14

[21]T18

75Dr Ho carried out a worksite assessment in November 2010.[22]  While his summary was correct to a certain extent as at the end of 2010, the moment the other staff came on, they allowed her to let them do the heavy jobs.[23]  The work she did post incident was restricted.[24]

[22]T70

[23]T71

[24]T72

76On her return to work, none of the houses wanted to have her, because she had already had an injury and was doing limited hours.  Because of those limitations, she did not get much work.  In that time, staying at work with her back pain was still difficult. She was fearful that she would injure herself in similar circumstances.[25]

[25]        T85

Right shoulder injury

77She enjoyed working in disability care –“absolutely”.  It is work that she loved to do if she could do it, because she was helping people who could not help themselves and she enjoyed caring for others.  She was passionate about her job.  She agreed her shoulder injury/rotator cuff tear had brought to an end her career as a disability worker as she is right handed.  She agreed she was devastated about being unable to continue with her work, because it was a job she loved.[26] 

[26]T21

78After right shoulder surgery, she had some retraining and then took on some light duties, working in disability case management, sitting in an office calling clients and doing home visits.  She was never able to return to disability work.[27] 

[27]T21

79The employer did not have any work, so she went to work for an agency two or three days a week doing case management.  That was the situation until she went off altogether with cancer in 2016.[28] 

[28]T25

80She very much misses not being at work.  She is still in touch with co-workers and is getting used to not working.[29]  She was keen to stay with the employer, but they had no work for her in case management.[30]

[29]T60

[30]T67

81She agreed that her ability to undertake cleaning, cooking and domestic chores was very restricted by her right shoulder injury, but before that, she was partially able to do those things.  She was able to do more gardening before her shoulder injury.[31]  She was not able to do mosaic work after her 2013 shoulder injury.[32] 

[31]T26

[32]T27

Post-incident treatment  

82Her back pain has been ongoing.[33]  She stopped seeing Dr Preston because she did not feel there was much he could do for her.  She doubted she would have said nothing to him about back pain over many years.[34]

[33]T30

[34]        T30

83She could not recall seeing him between November 2010 and September 2013 for other conditions but not complaining about her back.[35]

[35]T31

84While she attended Dr Preston thirteen times in 2010 and he noted back complaint on four occasions, she did mention it and he might not have written anything down.  She could not remember in 2011 seeing him eight times and not mentioning her back.  She was having her own treatment and she knew Dr Preston could not do anything for her anyway.  Her own treatment included hydrotherapy, physiotherapy with Lara and having a massage.[36]

[36]        T35

85She did not remember seeing Dr Preston ten times in 2012 and not mentioning her back, or in 2013, seeing him eighteen times and mentioning her back once.  It did not sound right to her that in 2014, she saw him thirteen times and there was no real record of back complaint.[37]  She had no idea whether, having attended thirteen times in 2015, she made no mention of her back or, in 2016, twenty attendances for a variety of things and not mentioning her back.[38]

[37]T39

[38]T36

86She had no idea that she did not tell Mr Pease anything about her back when examined by him in March 2015.  That would not be an indication her back was not troubling her greatly at the time.  She denied that she did not mention her back to Associate Professor Love, when seen in May 2014, perhaps because the back was largely manageable.  Possibly he did not ask about it.  He saw her for her shoulder.[39] 

[39]T43

87She did not recall the only mention of her back to Dr Preston in 2018 was telling him that she wanted to make a WorkCover claim for her back.  She did not recall telling him in January 2019 that she was considering suing DHS.[40]

[40]T40

88There was no gap in treatment from 2011 to 2019.  She was having hydrotherapy and physiotherapy pretty consistently, and also massage. Treatment for her back ramped up in 2019 because she had had her cancer treatment and she was home doing a lot of sitting and lying down, and that just absolutely exacerbated the pain.  It got much, much worse, and she is probably feeling it more since she has not been working.[41] 

[41]T41

89Between 2013 and 2018 when the plaintiff was not having physiotherapy, she was having hydrotherapy, which she thought was ongoing.  It was at Caulfield Hospital or Harold Holt, and in more recent times, at The Alfred hospital.[42] 

[42]T88

90She did not think there was a five‑year gap in physiotherapy treatment.  She was sure she had seen “Lara” but may have stopped from 2016 onwards because of her cancer.[43]

[43]        T41

Hip pain

91If her back was bad enough, pain travelled down to her hip or across the hip.  That pain began earlier than 2016, but she was not sure when.  It was just a progressive thing.[44]  Her hip was really bad since 2019 when Dr Preston diagnosed trochanteric bursitis.[45] 

[44]T44

[45]T45

92She had always had trouble sleeping.  The hip definitely made it worse, but she had had a problem sleeping because of her back for a number of years.[46] 

[46]T47

93The night pain she mentioned to Dr Lewis in 2020 in relation to the right hip has improved.  She rarely gets night pain and is not woken up at all by her hip.[47] 

[47]T49

94She had not seen Dr Du Toit again, as she could not afford to see him, WorkCover would not pay, so she went to someone slightly cheaper, Dr Lewis.  She saw him primarily for the right hip, not the knee.[48]

[48]T48

95She is not having any treatment for her hip now.  She thought the last was Dr Du Toit’s injection, maybe a year ago.  It was possibly right when she last saw Dr Lewis, that she reported an improvement in her hip.[49] 

[49]T51

96When taken to Dr Lewis’ October 2021 report, she said she was having difficulty walking as a result of her back, not knee and hip.  She thought, by the time she saw Dr Lewis, the rails at home had already been put in, but she was not sure.  She disagreed with his understanding that the rails had been installed because of her hip problems.  She then said it could be, it was possible, that the hand rails were installed for both her hip and back.[50]

[50]T75

97She did not recall why there would be no mention in Dr Lewis’ notes about back pain, but she was there for hip injections.[51]

[51]T51

98The egg-carton topper on the bed was for her hip but also helped for her back.[52]  She agreed housework was giving her problems with her hip in October last year.  Her requirement to take Panadol Osteo has been ongoing for the hip as well as other conditions. The wedge cushion takes a bit of pressure off her hip, but she has not needed it for some time.[53] 

[52]T76

[53]T76

99Problems with housework would have been worse with the hip, but they have always been very difficult since her back injury – not as much due to the knee.[54] 

[54]T77

100Her hip had improved since the injections.  Pain would be 1‑2 out of 10, and it flares up once every two or three days.  She does not take any medication at all for her hip.  When pressure is put on her hip, like lying on it, she feels pain.[55]

[55]T77

101Her right hip no longer significantly troubles her or restricts her in her daily life.[56]

[56]T78

Left knee

102There is pain in her left knee if she has to kneel down on it, like picking something up off the ground, but it is to a much lesser degree now.  Putting a cushion under it solves the problem.[57]  If she puts a cushion under it, It does not affect her doing things day to day.  Her housework is not affected by her knee or hip.[58] 

[57]T79

[58]T50

103Her knee does not cause problems standing or walking for long periods.  She does not run.[59]  She avoids heavy housework because of pain in her back, not her knee.[60] 

[59]T52

[60]T53

Shoulders

104“Possibly” reaching to the top cupboard, pulling out something heavy, causes shoulder problems.  Her shoulder restrictions are not as great as they were around the time of the shoulder surgery – “Nowhere near as they were – just a tiny bit, a small amount.”   She would not lift heavy pots or pans because of her right shoulder, but rarely did it anyway because of back pain.[61]   

[61]T54

105Her right shoulder does not affect her ability to do gardening, except if she has to reach up high with her arm.[62]  Otherwise, there is no significant ongoing pain and restriction from either shoulder.[63]

[62]T55

[63]T78

Current back condition

106Her back restricts and affects her life: “Everything, everything.  I’m just – the way I sit, the way I stand, the walking.  You know, socially what I can and can’t do.  Yeah, most of it.”  After prolonged sitting, like during the hearing, when she got up and moved, she was in severe pain and had to take more tablets – Panadol Osteo – just to get her through.  Depending on what she is doing, she probably takes these tablets three times a week.  Most times, she takes tablets in the evenings, but she could also take them in anticipation of something.[64]

[64]T79

107Her gardening has been restricted a lot due to back pain.  Pre-incident, she had her own wholesale nursery.  She used to be a horticulturalist.  She has a passion for gardening.  She has a huge garden, and a lot of it she cannot do, and she cannot afford to pay someone, so it is nowhere near what it used to be.  To be no longer able to do the amount of gardening – “It’s shocking.  This is my garden, I love it, it’s a big beautiful, you know, exotic garden.  And – and so much of the work I can’t do.  And I can’t afford to pay someone.”[65]

[65]T80

108When using a computer, she sits on a cushion and has another one behind her back, with the chair at a certain height.  However, she can only sit for so long, and then she moves into the lounge room.[66]

[66]        T81

109She is very rarely without pain.  It is severe daily, just depending on what she is doing, just like standing for a while to cook a meal.  She then “has numbness from the knee upwards, and it is a very sharp pain.  And the lower back.” Giving evidence, there was “sharpness in the right and left, just sitting in this position.  It’s an ache further up my back.”[67]

[67]T81

110She can no longer go on long walks with friends.  She rarely goes to the dog beach because of the impact of walking on the sand.  She is part of a big social circle.  They often go on picnics, but she cannot get down on the ground – “just the pain of getting back up again”.[68]

[68]        T82

111Some of her friends go to a wine bar.  If she does not get a seat, she is in trouble and generally has to leave early as she cannot stand for too long.[69]

[69]T82

112If she had not hurt her back, she did not think she would be her current weight.  Progressively, she has put on more and more weight.  She thought she weighed about 60 kilograms before the incident and agreed that by 2013, she weighed 105 kilograms.[70]

[70]        T84

113If she had not hurt her back, she would still be going swimming.  She used to go swimming all the time with her husband at Harold Holt.  She walked around Caulfield Park, having walked one kilometre there.  She now has to drive there and just does small walks.[71]

[71]T82

Lay evidence

114The plaintiff’s former sister-in-law, Jo Wagner, affirmed an affidavit on 16 May 2022.  She has known the plaintiff for many years, and while the plaintiff’s younger brother is no longer her partner, she and the plaintiff have always kept in contact and still have a very close bond. 

115She sees the plaintiff, usually a couple of times a month, and generally stays with her when she comes to Melbourne, thus having seen her in both a social and domestic setting over the years. 

116Since her back injury around fifteen years ago, the plaintiff has regularly complained of back pain and she has regularly needed to step into help when staying with her, doing a range of household tasks.  She knows the plaintiff to be a proud and independent person and would not do those tasks unless the plaintiff could not do them herself.  She has seen the plaintiff struggle with the tasks due to limited bending and lifting tolerance.  In particular, the plaintiff struggles to bend low and struggles with heavy lifting. 

117She is aware, in the past five years or so, the plaintiff has had other health conditions, besides her back, including cancer, facial nerve pain, knee pain and shoulder discomfort.  Over the past couple of years, she has observed and heard the plaintiff complain about her knee in particular, but the most consistent complaint is her lower back.  If they go for a walk or drive somewhere, it is the plaintiff’s back she tends to complain of.  From her observations, the plaintiff’s back continues to be the thing that hampers her most.

118She has been to the plaintiff’s house on occasions and seen the TENS machine.  She knows the plaintiff generally avoids medication, particularly opiates, and has spoken to her about various natural therapies.  When she is at the plaintiff’s home, she had seen her trying back stretches and exercises on many occasions.

119She has known the plaintiff for several decades and she thinks the biggest health condition to affect her has been by far her work-related back injury.  When they spend time together, the plaintiff complains of her back, like, when sitting watching television in the evenings, she sees the plaintiff fidgeting and being uncomfortable on account of her back.

120She knew the plaintiff to be a very dedicated disability worker and knows she is very upset she can no longer go back to that time of work.  She has watched the effects of the plaintiff’s back pain over time, and it is very upsetting for her to see the plaintiff has changed so much over the past decade or so.

Treaters

Pre-incident

121On 16 April 2010, Dr Preston reported to “whom it may concern” that the plaintiff had an L5-S1 intervertebral disc prolapse and lumbosacral joint arthritis as a result of the incident.

122Her present work consistently aggravated this injury and he believed that it was imperative that a vocational assessment be undertaken.  He believed it would be necessary for her to gain more appropriate employment in order for her lumbar pain to become under control.

123In a report to the Conciliation Service in 2010, Dr Preston noted the fact the plaintiff had continued to work despite being in constant pain for the past four years had impeded her recovery.  She would continue to require regular physiotherapy for at least the next four years to allow her to continue at work, as well as perform activities of daily living.

124At her own request, the plaintiff was officially working her normal hours with no restrictions.  However, she had learnt there were several activities which severely flared up her lower back pain, including mopping the floor, making beds and morning shifts, as they were usually heavier (dressing, showering et cetera).  It was an unofficial agreement at the plaintiff’s current workplace that she was not to be regularly rostered on the morning shift and that her co-workers do the mopping and bedmaking.  She was not capable of performing her pre-injury duties but had been able to continue working with a great deal of consideration from her colleagues.

125In Dr Preston’s experience, the plaintiff’s back muscles had always been in spasm to a greater or lesser extent for four years.  He advised the decision to cease physiotherapy was ill advised and should be revised.

126The plaintiff had an L5-S1 intervertebral disc prolapse and lumbosacral joint arthritis as a consequence of the lifting injury on 19 August 2006.  Her present work consistently aggravated this injury and he believed that it was imperative a vocational assessment be undertaken.  He believed it would be necessary for the plaintiff to gain more appropriate employment in order for her lumbar pain to come under control.

Post-incident

127Dr Preston reported in May 2016 that the plaintiff had attended hydrotherapy often ever since her injury in 2006, paying for it herself when QBE ceased funding.

128Hydrotherapy exercises for a longstanding lower back pain led to bilateral trochanteric bursitis in early July 2016, causing pain in both hips and restricting the plaintiff’s ability to walk and exercise.

129He first saw the plaintiff for this additional problem arising from the incident injury on 4 April 2016, prescribed rest and anti-inflammatories, and modification of her exercise program.  She then stopped hydrotherapy for the time being.

130Dr Preston reported in May 2021 that the plaintiff then had minimal pain in the lower back at rest, but developed pain with almost all activities, including gardening and domestic chores. 

131She was initially diagnosed with acute lower back strain with left sacroiliac sprain and L5-S1 disc prolapse in 2006.  She had subsequently developed right-sided sciatica, with intermittent numbness of the right leg and symptoms consistent with a myofascial pain syndrome and had now developed right anterior thigh pain and numbness.  She had neuropathic pain related to the right sciatic and femoral nerves, as well as somatic pain related to the sacroiliac joints. 

132He diagnosed right trochanteric bursitis and gluteal insertional tendinopathy, likely related to a lower back condition, and had been present since September 2019.  The plaintiff had pain in her right hip to a similar degree to when it first occurred, and relief from multiple injections had been transient.  Although cortisone and PRP injections had not given lasting relief, he had some hope that further treatments may be successful at some point.

133Dr Preston also diagnosed reactive depression associated with chronic pain, which was moderately severe and should improve with ongoing counselling.

134He thought the plaintiff’s back condition was not stable, with partial response to a series of injections and radiofrequency neurotomy in December 2019.  She got pains in the lower back at times, gradually getting worse.  These will likely require further treatment in the form of injections or RFM in the next six to twelve months, and she should also continue with physiotherapy and hydrotherapy.  Injections to her lower back had not provided further relief, and lasted longer than initially anticipated, to six to twelve months.

135The plaintiff’s right hip was not stable. Rehabilitation at Epworth involved physiotherapy, counselling, dietician and occupational therapy.  An occupational therapy home visit led to installation of hand rails in the shower and various cushions and mattress aids, adjustment of desk seating and a long-handled grabber tool and robot vacuum cleaner, all of which had been useful.  She had had two cortisone and six PRP injections to the right hip, which had given minor short-term relief, and he was then considering anabolic steroids plus PRP injections next time. 

136On balance, he thought the plaintiff was not presently capable of undertaking unrestricted pre-accident work duties for full pre-injury hours on a regular and reliable basis.

137His April 2022 report was in similar terms.  He also added the plaintiff suffered from a Chronic Pain Disorder associated with her back and hip conditions, and reactive depression.  The depression then was moderately severe.  He thought the right hip condition, her back and psychological condition were not stable.

Lara Syme (Hurst), physiotherapist – pre incident

138On 5 May 2011, Ms Hurst noted: “med panel – no physio, no medical Rx – approved vocational training.” 

139She provided a report for the Conciliation Service in 2010 for the purpose of ongoing physiotherapy funding. 

140She advised the plaintiff was a hard worker and had continued to go to work despite a level of pain most would not withstand.  She did not believe that disability work was the best type of work for the plaintiff to be doing.  She believed it aggravated her pain and made her reliant on hands- on physiotherapy, and it prevented the initial injury from healing optimally. 

141She considered the plaintiff was a prime candidate for retraining.  A vocational assessment was the only way to fairly and amicably resolve the issue.  Then a new career path needed to be chosen by the plaintiff from the recommendations.  However, in the interim, at least weekly physiotherapy needed to be funded to keep the plaintiff working and the pain under control.

142Ms Hurst advised QBE in October 2010 that the plaintiff was still working in a particularly physical job, which was exacerbating her back pain, and paying privately for physiotherapy to stay at work.  She was seeking approval for the plaintiff to have weekly housework assistance and weekly gardening to take some of the strain off her lower back.

143Ms Hurst wrote to Dr Moreton in November 2010, advising the plaintiff’s pain was aggravated by her job as a disability worker and noting that the plaintiff exhibited considerable muscle spasm. 

Post-incident

144There was a further referral to Lara Syme in October 2018.  She wrote to Xchanging in April 2019, seeking funding approval for medial branch blocks.  She also completed a physiotherapy management plan dated 11 April 2019.

145The plaintiff was assessed for a hydrotherapy plan at The Alfred in June 2019.

Dr Neels Du Toit, pain physician

146Dr Du Toit first saw the plaintiff on referral from Mr O’Brien in August 2019, with the main presenting concern being a longstanding history of lower back pain since the incident in 2016.  She was also concerned about right anterior thigh pain, as well as tingling and numbness in the right thigh and lateral hip pain, especially the right.  Back pain was worse with activity and resulted in restrictions in housework and gardening.  She was also concerned about significant night pain, made worse when sleeping on the affected right hip.

147On 15 August 2019, Dr Du Toit performed a diagnostic facet joint block and specifically, a medical branch block to the bilateral L3-5 levels. The plaintiff experienced no benefit in back pain from this intervention, and he could conclude that her lower back pain was not facet joint related.

148On 18 September 2019, he performed bilateral sacroiliac joint injections.  The plaintiff did experience significant short-term relief in lower back pain as well as hip pain, and he could conclude her pain was most likely mediated through the bilateral sacroiliac joints. 

149On 11 December 2019, he performed right L4-S3 radiofrequency denervation treatment and on 23 December 2019, left L4-S3 radiofrequency denervation treatment designed to treat pain from the sacroiliac joints bilaterally. 

150He saw the plaintiff in April 2020, four months after the RFD treatment.  She reported an improvement in back pain, with better walking tolerance, but was still concerned about quite significant right lateral hip pain, especially at night.  He suggested she consider a platelet rich plasma injection to the right gluteal tendon insertion and overlying trochanteric bursa which he performed on 21 May 2020.

151On that day, the plaintiff was also concerned about left knee pain, and he thought she had most likely sustained a degenerative type of medial meniscus tear.  An MRI scan of the left knee in May 2020 confirmed a degenerative type tear of the medial meniscus with moderate arthritis affecting the medial joint compartment.

152He diagnosed lower back pain secondary to sacroiliac joint pain and left L5-S1 facet joint arthritis, lateral hip pain secondary to gluteal tendon insertional tendinopathy and overlying trochanteric bursitis, overriding neuropathic pain causing more widespread pain and clinical signs of allodynia and hypersensitivity affecting the back, buttock and hip areas.

153Given the longstanding nature of the plaintiff’s pain, he thought her prognosis was poor to return to pre-injury duties.  They had been able to improve her lower back pain with RFD treatment, as well as a PRP injection to the right gluteal tendon insertion.  This treatment may have to be repeated in the future to provide ongoing relief.

154As a result of her pain presentation, the plaintiff had no capacity to perform duties that require repetitive pushing, pulling or lifting.  She should have the capacity to break prolonged sitting and standing postures with regular walking intervals.  Her current pain presentation was stable, and he did not expect further deterioration.  As a result of her ongoing pain issues, she had poor capacity to perform day-to-day activities around the house, but also reduced capacity to perform recreational and leisure activities. 

Dr Robin Hunter, rehabilitation physician

155Dr Hunter assessed the plaintiff at Epworth Rehabilitation on 19 March 2020.

156The plaintiff reported longstanding back pain following the incident.  She had bilateral L4-S3 RFNS, which she reported reduced her sacroiliac pain by 40 per cent.  She had persistent pain over her entire back from her neck to her pelvis, which was aggravated by bending.

157On assessment, the plaintiff had had recent onset of pain in the lateral aspect of her hip.  She had had an ultrasound and a steroid injection to the right trochanteric bursa, which improved her pain for about two days, however, the pain recurred.  She was referred to Dr Du Toit, who arranged PRP injections to the right hip, which improved the pain.

158The plaintiff also developed left knee pain in May 2020 and had a steroid injection, which was not beneficial.

159The plaintiff attended the pain program at Epworth Rehabilitation which, unfortunately, was interrupted by COVID.

160There was an occupational therapy home visit to make various adjustments.  She was last seen at Epworth in October 2020.

Dr Peter Lewis, Recreational Medical Centre

161The plaintiff first saw Dr Lewis about her right hip pain on 8 December 2020, with a history of that being ongoing since mid 2019.  She also reported experiencing pain that disrupted her sleep every night.

162An x‑ray of the right hip of February 2020 revealed trochanteric bursitis.

163Dr Lewis provided her with PRP treatment whereby PRP was injected into the plaintiff’s trochanteric bursa.  After the initial course, she reported 70 per cent improvement in her pain.  However, flare-ups had since been an issue and required ongoing treatment.  She had also been attending rehabilitation at Epworth Rehabilitation, and he introduced her to an exercise physiologist who was helping with home-based rehabilitation.

164The plaintiff further explained that due to her condition, handrails had been installed to assist with her home mobility, and an egg-carton bed topper was in place to offload the pressure from her hip.

165Despite PRP treatment and ongoing rehabilitation, flare-ups had been an issue.  The pain had now returned to baseline.  It was constant and aggravated by physical exertion.  The plaintiff currently walked with a limp and could not walk for longer than 20 minutes without needing a break.  She took Panadol Osteo as required and slept with a wedge cushion to help with the night pain.

166The plaintiff advised she found household chores such as mopping, sweeping, vacuuming, gardening, making the bed and cleaning the bath, difficult.  She additionally reported that pain had prevented her from participating in social activities like having long walks or picnics.  In light of her ongoing flare-ups, it was expected she would experience limitations with her mobility and daily activities involving hip flexion.  Her condition was currently stable and unlikely to improve in the next twelve months.

Dr Tobie Sacks, psychiatrist

167The plaintiff was referred to Dr Sacks by Dr Preston in early 2022.  She then presented with moderately severe chronic low back pain radiating into her right hip.  The pain was also aggravated by emotional distress.

168Dr Sacks concluded the plaintiff presented with a Chronic Pain Disorder associated with both psychological factors and a general medical condition, that is, sensitisation of her CNS pain pathways, together with muscular irritability (Myofascial Pain Syndrome), DSM‑V Somatic Symptom Disorder.

169The condition was aggravated by the partially controlled right hip trochanteric bursitis, the problems with her left knee, her weight, and her general deconditioning.

170The psychological/symptoms associated with the chronic pain had been significantly compounded by the residual cognitive impairments resulting from the chemotherapy and radiotherapy.

171As a consequence of the persistent pain and its associated symptoms, he also thought that the plaintiff was currently unfit to return to work and that a capacity to return to a former occupation as a disability mental health worker or to engage in any alternate forms of employment for which she was qualified by education, training, or experience, was significantly impaired.

Investigations

172Following a lumbar CT scan in October 2006, it was reported there was a small disc herniation at L5-S1 involving the left L5 nerve root.

173There was a further CT scan in February 2010.  It was reported that at the lumbosacral level, there was central disc bulge bilateral facet joint arthritis and probably enlargement of the S1 nerve root on the left.

174A lumbar CT scan on 4 September 2013 revealed no disc herniation or foraminal stenosis.  There was partial lumbarisation of S1 on the right.

175Following an x-ray of the pelvis and hips organised by Dr Preston in April 2016, it was reported there was bilateral gluteus minimus and medius tendinosis and bilateral trochanteric bursitis.  It clinically indicated an ultrasound-guided cortisone injection could be considered.  

176Dr Preston organised a lumbar CT scan in January 2019.  It was reported there was a transitional lumbosacral vertebra.  At all levels the spinal canal was capacious.  There was minor joint degenerative change at left L5-S1 and no other abnormality.

177Mr O’Brien organised a lumbar MRI scan in February 2019.  It was reported there was moderate left L5-S1 facet joint osteoarthritis, mild facet joint osteoarthritis of the right L3-4 and right L4-5 facet joints.  The lumbar canal and all lumbar neural exit foramina were patent, with no significant lumbar canal or foraminal stenosis detected. There was mild to chronic L1-2 disc degenerative disease, characterised by partial disc space narrowing and anterior disc space osteophyte formation.

178Mr O’Brien also arranged a bone scan in February 2019, following which it was reported there was at least moderately severe active facet joint arthropathy at L5‑S1 on the left.  No other scintigraphic causes for lumbar back pain were identified.

179The plaintiff had an ultrasound right trochanteric bursal injection in March 2020.  She had an ultrasound and x-ray of her right hip in February 2020, which revealed mild trochanteric bursitis.

180The plaintiff had an MRI scan of her left knee organised by Dr Du Toit in May 2020.  It was concluded there was a degenerate tear of the medial meniscus, grade two medial compartment chondral loss and subchondral bone oedema.  There was mild lateral compartment degenerative change and patellofemoral chondromalacia. 

Medico-legal evidence

Mr Russell Miller, orthopaedic surgeon

181Mr Miller saw the plaintiff in September 2018 in relation to her back injury.

182The plaintiff’s lower back was then her major problem, with ache, discomfort and pain in the lower back radiating into the buttocks, groin and legs.  There was numbness in the right thigh and shooting pains down the right leg.

183The plaintiff had also suffered an adverse mental state reaction with anxiety, depression and development of a Chronic Pain Syndrome.  There was some minor ache and discomfort in the right shoulder.

184The plaintiff had continued to use a range of medication, including Panadol Osteo and Voltaren, and used a TENS machine, and had had physiotherapy and hydrotherapy in the past.  She received monthly massages and undertook self-directed exercises at home.

185The plaintiff told him that she had made a full recovery from her shoulder injuries post surgery.  She had injured her left knee in 2014, for which she received a period of conservative treatment, and the symptoms fully resolved.  She felt she had a minor problem of impairment following radiotherapy and chemotherapy for non-Hodgkin’s lymphoma. 

186There had been an injury to the lumbar spine, including musculoligamentous strain, and aggravation of degenerative disease.  There was no evidence of structural injury, radiculopathy or neurological deficit.  The plaintiff had a poor response to conservative treatment, and surgery was unlikely to be beneficial.  The described injury was associated with the development of a Chronic Pain Syndrome, which influenced the clinical presentation and contributed to the overall fair prognosis.  There had been an adverse mental state reaction.

187He thought the relationship between the lumbar spine injury and its sequelae, and the plaintiff’s work, was complex and multifactorial.  The contributing factors included pre-existing degenerative disease of the lumbar spine, the incident injury and Chronic Pain Syndrome.

188The current clinical status was regarded as substantially incident related.  The plaintiff would require ongoing conservative treatment.

189She would have difficulty with work that involved repetitive bending, repeated lifting, lift of weights more than 5 kilograms, and she would need to shift her posture regularly.  It was likely the development of a Chronic Pain Syndrome further impacted her capacity to work.

190On re-examination in May 2021, the plaintiff reported her lower back continued to be a major problem for her.  Symptoms described earlier fluctuated and there had been no pattern towards improvement.

191The right hip was now also a major problem for her, with aches, discomfort and pain in the right buttock, groin and thigh – the symptoms being worse than when last seen.  She had also suffered an adverse mental state reaction.  She had some minor aches and discomfort in her right shoulder but complained of no other specific orthopaedic symptomatology.

192He confirmed his earlier lumbar spine diagnosis.  He thought the symptoms in the right hip were likely to reflect referred pain from the lumbar spine, manifestations of a Chronic Pain Syndrome and low grade trochanteric bursitis.  The prognosis for the hip, itself, was only fair.

193The plaintiff had had treatment with a good result for the non-Hodgkin’s lymphoma.  There had been an adverse mental state reaction, which included anxiety, depression and development of a Chronic Pain Syndrome.

194There had been some deterioration in the plaintiff’s condition since she was last reviewed. 

195In August 2021, Mr Miller was asked to comment on the relationship between the plaintiff’s right hip condition and the work injury.

196The symptoms in the hip, in part, came from the lumbar spine.  It was likely there was some pre-existing disease in the hip, in the form of low grade trochanteric bursitis, which was asymptomatic.  It was also likely the incident injury aggravated the hip condition.  It was also likely that the development of a Chronic Pain Syndrome was partly a cause of the hip symptoms.  He therefore regarded the symptoms in the right hip as being partly related to the effects of the incident injury.  He thought it unlikely the plaintiff would benefit from surgery to the right hip and the risk of developing arthritic disease was quite low.

197He believed, on balance, the current condition of the right hip, taking in the totality of the factors mentioned, has been contributed to in a significant way as a result of the work injury, and there was also interaction between the spine and hip symptoms, such that one aggravated the other.  For both these reasons, he believed the incident and the spinal injury had contributed to the right hip condition.

The Defendant’s evidence

2015 affidavit

198The plaintiff swore an affidavit on 22 December 2015 in relation to her 2013 right shoulder injury.

199She had been involved in a transport accident where she injured her back in 1980 and thereafter, suffered some problems with her back from time to time.

200In about August 2006, she suffered further injury to her back while working for the employer.  In October that year, she had a lumbar CT scan which reported a small disc herniation at L5‑S1 involving the left L5 nerve root.

201She was off work for a period of time, however, managed to return to normal duties, albeit she had to be careful with activities involving heavy lifting or repetitive bending and twisting.

202On or about 8 March 2013, the plaintiff injured her shoulder while attempting to open a stiff sliding window in the laundry at work. Following that incident, she attended GP, Dr Utten, who arranged a right shoulder x-ray and ultrasound.

203On 12 March 2013, she saw Dr Preston, who arranged a cortisone injection into the right shoulder and an ultrasound of the left shoulder on 13 March 2013.  Later that month, the plaintiff had a steroid injection into the left shoulder, and in April, a steroid injection into the right.

204On 11 July 2013, she had an ultrasound-guided injection into her left shoulder.  She also had physiotherapy and hydrotherapy.

205As her symptoms failed to improve, she was referred to Mr Soo, orthopaedic surgeon, who recommended surgery and undertook a right shoulder arthroscopy decompression and bursectomy on 26 July 2013.

206After the surgery, shoulder movement was painful and restricted, and the plaintiff  was told she was suffering from a frozen shoulder.  She also had severe right thigh pain and numbness, which she had had since the earlier back injury, but it was worse since the shoulder surgery.

207Following shoulder surgery, she had physiotherapy and was reviewed by Mr Soo.  On 4 September 2013, she had a lumbar CT scan.

208She had an ultrasound of the left shoulder in February 2014 because of ongoing symptoms and was told it showed ongoing subacromial bursitis.

209In about April 2014, she fractured her right knee and had to wear a brace for a period.

210On 11 December 2014, she had a further ultrasound-guided injection into her right shoulder but did not get any benefit from it.  She saw Mr Soo again, who recommended against surgery.

211Her physiotherapist suggested she have pain management at Caulfield Hospital, but funding was denied by WorkCover.

212As at December 2015, despite treatment, she continued to suffer from right shoulder pain which was generally at 7 out of 10, and with flare-ups could get to 8.  Her ability to use her dominant right arm for activities such as lifting, pushing or pulling was restricted.

213She continued to have left shoulder pain, but not as bad as the right, assessing it at about 3 out of 10.  She also had difficulty using her left arm for lifting, pushing, or pulling; however, the restrictions were not as severe as those relating to the right.  Her ability to use her arms overhead, particularly the right, was restricted.

214She continued to suffer from low back pain and right thigh pain and numbness, and as a result of her back symptoms, had to be careful with activities that involved bending, lifting and twisting.  

215Her sleep was affected by her right shoulder more than her low back or left shoulder.

216The thing that upset her most about the injury to her shoulders, in particular, the right, was that it brought to an end her career as a disability support worker.  She very much enjoyed this work, and it devastated her that she was no longer capable of continuing with it.

217She underwent retraining since she suffered injury, and had also undertaken light duties, some light office duties and some work experience in case management.

218She struggled to find suitable alternative employment, and in December 2015, commenced casual case management work through a recruitment agency doing two to three days a week.  However, as of late 2015, she was very concerned and anxious about the future.

219Her ability to undertake cleaning, cooking and domestic chores was now very restricted, as was her ability to do gardening.  She had difficulty carrying pots and pans, and also difficulty putting jumpers on or doing up her bra.  At times, she suffered from worse shoulder pain after brushing or drying her hair.  Prior to suffering injury to her shoulders, she enjoyed mosaic work, but now struggled to cut the glass.

The Defendant’s medical evidence – Plaintiff’s treaters

Dr Harkness, rheumatologist

220The plaintiff was examined by Dr Harkness at the request of her GP, in November 2010.

221The plaintiff complained of back pain present since the incident, which Dr Harkness thought seemed somewhat surprising.  He noted she was vague about the distribution of pain.

222Due to ongoing symptoms, a lumbar CT scan was repeated in February 2010, and the report indicated the possibility of a continuing disc protrusion at L5‑S1, although the radiologist was not clear about this and suggested the image may be showing an enlarged S1 nerve root rather than a disc protrusion.

223An MRI scan was recommended to help assist this, and was undertaken in August, which showed quite clearly at L5‑S1, there was no disc prolapse but only a slight bulge.  There was no abnormality seen in the nerve roots at that level.  Slight degenerative change was reported in the facet joints at the lower two levels of the lumbar spine.

224On examination, the plaintiff had a full range of movement in the lumbar spine and hips.  She was locally tender over the left sacroiliac joint and he gave her an injection into this area in an attempt to help relieve her symptoms.

225He explained to the plaintiff that she did not have anything seriously wrong with the lumbar spine in terms of disc prolapses or nerve root compression.  This appeared to come as shock to her, as she had been led to believe that she had a significant disc injury and arthritis.  He thought it was interesting that she did not appear to be pleased by his positive report, but more annoyed by it, and she explained to him that she did not want his opinion being made available to her insurers, which he also found interesting.

226He encouraged her to take an optimistic view about her back condition.

227He thought it was likely that the nature of the plaintiff’s work was aggravating her lower back pain, and she would benefit from a change of jobs.  She would also benefit from significant weight loss, and she indicated she had already taken steps in that regard.  Hopefully the local cortisone injection would also give her some relief.  At that stage, he had not taken the matter any further.

Mr Shay Zayontz, orthopaedic surgeon

228The plaintiff saw Mr Zayontz, at the request of Dr Preston, in August 2020, following the development of left knee generalised pain as well as right lateral hip pain, lying on that side about a year ago.

229He noted she had tried physiotherapy and had cortisone and PRP injections to the right trochanteric bursa, which had given moderate relief.  She had a cortisone injection to her left knee which had given her excellent relief for two days, but the pain had subsequently returned.

230In relation to her hip, she was contemplating further PRP injections for her hip and was awaiting WorkCover approval.

231In terms of the left knee, he had referred her for a further cortisone injection under ultrasound.  He had also discussed with her the possible role of PRP injections to her left knee as well, and she had discussed that with Mr Du Toit.  Having assessed her that day, he did not believe she would benefit from surgical intervention.

232Mr Zayontz reviewed the plaintiff in September 2020.  She had had an excellent result from an intra-articular cortisone injection, but then had had some ongoing symptoms, although she had improved from her pre-injection state.

233They had a long discussion about meniscal tears and the aims of therapy.  The plaintiff would see how she went in a month, then contact him if she had any ongoing problems to consider further treatment.  It would be important for her to lose weight, and that was discussed.

The Defendant’s medico-legal evidence

Dr David Ho, occupational physician

234Dr Ho examined the plaintiff in November 2010.

235He then thought the plaintiff had most likely recovered fully from the likely soft tissue or facet joint strain in the lower back sustained in the incident.  She was currently suffering from asymptomatic facet joint arthritis in the lower back which was age related and would have presented in time.

236The plaintiff was currently at work, working her pre-injury hours, in a community residential home in Bentleigh, and a worksite assessment would be conducted to assess the suitability of her current duties for her condition.

237A worksite assessment was conducted in late November 2010.  Dr Ho noted in terms of the physical requirements of the job, that the pace of the work was hectic or very fast, especially in the mornings when getting the residents up to shower, change and have breakfast, before going on their placement.  There was frequent bending, kneeling or squatting when dressing the residents.

238The plaintiff was also required to push a wheelchair for one of the residents.  She had to be careful when manoeuvring the wheelchair in narrow passages.  There was no actual heavy lifting or manual handling of the residents.  The staff member had, however, to assist with the full dressing of the residents.  The plaintiff was constantly on the move early in the morning.

239Dr Ho noted the plaintiff was currently working with her pre-injury duties on her pre-injury hours.  Although the pace of work was hectic, particularly in the mornings, she was coping well with her normal duties.  She was currently working on sleepover shifts.  In view of the pace of work when getting residents ready in the morning, he believed she should perhaps reduce her number of sleepovers. 

Medical Panel

240In April 2011, the Medical Panel found the plaintiff was suffering from a chronic back condition of the lumbar spine relevant to the claimed back injury.  She could remain at work if the medical services proposed, namely physiotherapy, were not provided.  Physiotherapy was not essential to ensuring her health or ability to undertake necessary activities of daily living.

241The Medical Panel concluded a vocational assessment was an appropriate and adequate occupational rehabilitation service for the plaintiff’s injury and/or condition, noting the plaintiff’s strongly held belief that “work is affecting my back.  I can’t keep doing it.”

Mr Richard Pease, orthopaedic surgeon

242The plaintiff saw Mr Pease in March 2015 in relation to her shoulder injury.  There was no mention under past history of any back complaint.

Associate Professor Bruce Love, orthopaedic surgeon

243Professor Love examined the plaintiff in May 2014 in relation to her right shoulder injury.  He made no mention of her earlier back condition.

244He thought the plaintiff had had significant rotator cuff tendinitis which had been surgically treated and which had brought about some improvement, but she remained disabled.

245The plaintiff’s employment ceased on 20 March 2014 because she was advised there were no suitable alternative duties for her.  She felt she was incapable of performing her tasks as a disability support worker because much of the work involved forceful use of her shoulders and her shoulders were not capable of tolerating that activity.  He then thought she could work in suitable alternative duties not requiring stressful use of her right shoulder.

246Professor Love re-examined the plaintiff in June 2019, this time in relation to the incident injury to her back.  He noted she first developed back pain in 2006, when working as a support worker in a community house, showering a patient.  She developed back pain, which put her out of work for six weeks.  She then returned to work in a light duties’ capacity, before resuming normal work after eighteen months, and then obtained administrative case management work in 2015 and 2016, before ceasing work due to the lymphoma. 

247Essentially, back pain had been with the plaintiff since 2006 and had slowly worsened with time.  Her current symptoms were those of pain in the lower back with some mild numbness in the right thigh.

248The suggestion that facet joint injections be trialled was not unreasonable, although there was a significant probability they would make little difference, either in the short or longer term.  Generally, Professor Love was pessimistic that a long-term resolution of symptoms could be achieved in the current circumstances.

249The proposed facet joint injections, in Professor Love’s opinion, were principally diagnostic, in that if symptomatic improvement was brought about by such injections, then further permanent blocks might be considered.

250The procedure had been requested on the basis of a more than ten-year history of back pain without resolution.  It appeared there had been no other treatment that had been helpful and hence this option was reasonable. The reason for proceeding related entirely to the long-term presence of the symptoms as described.

251The plaintiff had tried a variety of alternative treatments over ten years without significant benefit.

252On re-examination in March 2021, the plaintiff generally said the spinal symptoms she had experienced when previously seen had lessened significantly, but she continued to find tasks where she was adopting a bent posture aggravated her symptoms of pain in the lower back.  She also described symptoms of the lateral aspect of the right hip, which had been described as bursitis.

253On examination, there was a modest restriction of range of movement in terms of flexion and extension of the lumbar spine.  Examination of both hips did not reveal any restriction of range of motion, but there was marked local tenderness over the lateral aspect of the upper thigh passing to the mid-thigh.

254Based on viewing the MRI images, Professor Love thought the plaintiff principally had age-related degenerative changes in the lower lumbar spine. It was also reasonable to accept she had a degree of trochanteric bursitis, as evidenced by the tenderness.  Her prognosis for full resolution of these symptoms was not good, and ongoing therapy may be indicated in view of her reported responses to injections in the past.

255He diagnosed age-related degenerative change, aggravated by the nature of work.  The plaintiff’s prognosis was such he did not consider that it would be probable there would be a significant improvement in the near future. 

256The treatment the plaintiff’s bursitis, which Professor Love understood to have been injected, did not have a clear workplace origin.  She was unable to describe the time of onset of right thigh pain, but it appeared to be of relatively recent onset.  He did not think that the right thigh pain and tenderness related to the lumbar spine condition. 

257He thought the plaintiff’s employment had materially contributed to her current incapacity in spite of the onset many years ago. The aggravation had, in all probability, diminished with time, but it had not ceased.

258There was probably some functional contribution based on the domestic changes in recent times and the plaintiff’s need for psychological support.  He also concluded that the overwhelming majority of her symptoms related to the spine, and right hip symptoms were of significantly less significance to her. 

259On re-examination in August 2021, the plaintiff stated she had constant lower back pain which was aggravated by bending and stooping.  She was currently taking Panadol Osteo and Tegretol.

260Her right hip had continued to be troublesome, and she had had a number of plasma injections which had brought about pain relief for only two or three weeks.

261Findings on examination were consistent with a person of age-related degenerative change in the lumbar spine and where a diagnosis of trochanteric bursitis had been made.

262The plaintiff had age-related degenerative changes of the lumbar spine, the symptoms of which had been continuous since 2006, and the symptoms in the right upper buttock appeared spontaneously several years after the onset of the spinal symptoms, but with no specific event described.

263His view that the trochanteric bursitis does not have a clear workplace origin is based on the vagueness of the history provided by the plaintiff.

264He thought the plaintiff’s reference about the right hip and right thigh were a reflection of her inability to differentiate between the regions and he considered the symptoms in the region of the right hip and thigh to be symptoms arising from the same source, even though that source had not been clearly identified.

Mr Michael Dooley, orthopaedic surgeon

265Mr Dooley examined the plaintiff in April 2019.

266The plaintiff reported constant ongoing lower back pain.  She felt her pain was getting worse in time.  She tried to remain active and tried to walk regularly.

267The plaintiff told Mr Dooley of treatment for non-Hodgkin’s lymphoma and her recovery from this.  She said she injured her shoulders at work in around 2013 and had undergone right shoulder surgery.

268On examination, there was some tenderness and restriction of lumbar movement.

269Mr Dooley thought the plaintiff had naturally occurring and age-related degenerative disc disease of the lower lumbar spine affecting the lumbosacral level.  He believed, in the incident, she sustained a soft tissue injury to her lumbar spine that involved some aggravation of the underlying degenerative disc disease and she reported ongoing lower back pain.  She reported significant disability.  Clinically, there was moderate restriction of the lumbar spine motion.  There were inconsistent signs in relation to straight leg raising.  There was no evidence of objective neurological deficit affecting the lower limbs, and radiologically there was evidence of mild degenerative changes at the lumbosacral level.

270Accepting the soft tissue injury, he believed the constancy and intensity of the plaintiff’s ongoing pain and a described disability greater than one would expect to see for her organic condition.  He thought she had a psychological reaction to her situation, which influenced her ongoing symptoms.

271From an orthopaedic point of view, Mr Dooley did not believe the plaintiff required formal ongoing conservative treatment and it was important she remain generally active.

272From an orthopaedic point of view, Mr Dooley believed the plaintiff would continue to note some intermittent lower back pain.  He believed the plaintiff’s ongoing lumbar spine symptoms relate to a combination of the work injury, the natural evolution of her underlying degenerative disc disease and her psychological reaction to the situation. 

Overview

273There is no dispute that the plaintiff suffered a lumbar injury in the incident in 2006.

274The consensus of orthopaedic opinion is that she suffered aggravation of the underlying degenerative disc disease.[72]  Dr Du Toit also diagnosed lower back pain secondary to sacroiliac joint pain and left L5-S1 facet joint arthritis,    

[72]        Mr Miller, Professor Love and Mr Dooley

275The incident injury continues to contribute to the plaintiff’s current lumbar presentation, with both Professor Love and Mr Dooley, who examined the plaintiff on the defendant’s behalf, accepting an ongoing contribution, even though the incident was sixteen years ago.

276Professor Love was clearly aware of the longevity of the plaintiff’s back pain – supporting funding for facet joint injections, albeit probably for diagnostic purposes – noting ongoing back pain for more than ten years without resolution.

277While counsel for the defendant submitted the evidence in relation to the worsening or progression of the plaintiff’s physical back pain was tenuous in the case,[73] she is not required to show a progression from the incident date, only an ongoing contribution to her present back condition.

[73]T77

Credit

278As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[74]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[74](2010) 31 VR 1 at paragraph [12]

279Counsel for the defendant made limited comments on the plaintiff’s credit in what I did not consider to be a credit case.[75]  It was not put that there was an attempt to mislead, but it was submitted the plaintiff was a somewhat unreliable historian who focussed on her back, playing down unrelated conditions to assist the evidence towards perhaps giving it the best chance.[76] 

[75]T100

[76]T101

280In those circumstances, it was submitted the Court should query the weight to be put on the plaintiff’s evidence, in particular, where it is not corroborated in the documents, and should prefer those documents to the plaintiff’s viva voce evidence.[77]

[77]T102

281Counsel for the plaintiff submitted the plaintiff was a credible witness who was  straightforward about things.  Her evidence could be accepted in terms of the  severity and constancy of her symptoms, with daily, severe back pain, affecting her life in all her activities.[78] 

[78]T135

282I found the plaintiff to be a credible witness, and somewhat of a stoic – a view shared by her GP and physiotherapist in their 2010 correspondence to the Conciliation Service seeking funding for ongoing physiotherapy to enable her to continue at work.  I accept that the plaintiff battled on with ongoing back problems until the 2013 shoulder injury. when she ceased work because of that condition.

283The plaintiff’s friend, Jo Wagner, confirmed the plaintiff’s hardworking nature and her struggle since the said date with ongoing back pain.  

284As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[79] he suspected:

“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”

[79] [2008] VSCA 260 at paragraph [4]

285The plaintiff gave a straightforward, balanced account of her various non-compensable health issues and her back condition and their effect on her life. 

Pain

286As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[80]  “The evidentiary basis of the pain assessment will ordinarily comprise the following:  (a)   what the plaintiff says about the pain (both in court and to doctors);… .”

[80](Supra) at paragraph [11]

287Counsel for the defendant did not suggest the plaintiff ever stopped having back symptoms but they should be looked at in the context of the activities she performed, albeit with back symptoms.[81]  There was no attack on the plaintiff’s evidence of her experience of pain.[82] 

[81]T97

[82]T99

288The plaintiff continues to suffer from lower back pain on both sides.  It is constant and varies in severity.[83]  It is flared up easily by prolonged sitting and repeated bending.  When the pain is severe, she gets very sharp spasms, and with prolonged standing, gets numbness from her knee to the hip.

[83]        Plaintiff’s affidavit affirmed 16 May 2022

Treatment

289While the defendant’s submissions were largely based on what was submitted to  be significant gaps in treatment, on close examination of all the medical evidence, it appears that since 2006 the plaintiff has been having treatment of one sort of another for her lower back pain, with more significant procedures undertaken in recent years.

290Although there may have not been ongoing complaints on a regular basis to the general practitioner, Dr Preston, as the plaintiff deposed, in 2010, she really ceased seeing him for her back as there was little more he could do.

291She did, however, undergo back treatment, even after funding ceased in 2010-2011.  While there may be some gaps in treatment, there is continuity with the same physiotherapist throughout.[84] 

[84]T132

292Later in 2019, as her lumbar complaints continued, the plaintiff saw Dr Du Toit, who undertook a range of procedures – injections and radiofrequency denervations –  which have provided only temporary relief.[85]  The plaintiff has also had hydrotherapy through The Alfred.

[85]T133

293While the level of painkilling medication has never been high,[86] it has been ongoing and, in my view, it is understandable why the plaintiff would be reluctant to take significant painkilling medication because of her previous heroin addiction.[87]  The Panadol Osteo she takes assists only to a degree in relation to her ongoing pain.[88]

[86]T99

[87]T135

[88]        Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 per Dodds-Streeton JA at paragraph [199]

294While some of the more treatment has focussed on the plaintiff’s hip, I accept, as she described, her hip is now not much of an issue for her.  The treatment for the hip has been successful, and her hip is not giving her significant trouble.[89]

[89]T135

Consequences

295As a consequence of her back pain, she has difficulty with bending and twisting and prolonged postures.

296Her ability to undertake heavier domestic tasks is limited, particularly those involving bending – like making the bed – or cooking, standing for pronged periods.

297Her problem standing also affects her ability to enjoy her social life with her friends at the wine bar they enjoy attending and other social activities.  Picnics are also difficult due to her problem getting up and down from the ground due to back pain.

298Of particular significance to the plaintiff are problems with gardening caused by her back pain.  She was a horticulturalist before the incident and enjoyed working in the field.  Her activities in this regard are now very limited and she is very upset that she cannot look after her huge garden as she previously did.[90]

[90]T136

299The plaintiff has also had ongoing problems with sleep which in recent times have been worsened by her hip pain which has now largely settled.

300She is limited in her ability to engage in physical activities like Tai Chi and walking her dog.

301Sitting for prolonged periods at the computer causes increased back pain which she deals with using cushions. 

Work

302Counsel for the defendant submitted the plaintiff retained a work capacity until her right shoulder injury in 2013 which devastated her career in disability work.  Before that injury, there was a low level of impairment and a significant retained capacity.[91] “Just being careful” would be compelling evidence as to a low level of impairment before the shoulder injury.

[91]T92; 2015 affidavit

303The plaintiff’s résumé and Dr Ho’s description set out a more significant level of capacity.  It was submitted those factors should leave the Court in no doubt as to the extent to which the plaintiff could still do physical things after the incident back injury.[92]

[92]T94

304In response, counsel for the plaintiff relied on the 2010-2011 documentation from Dr Preston and the physiotherapist confirming the plaintiff’s ongoing back pain, problems with work and their view she should change vocations at that early stage.[93]

[93]T130

305Clearly, this evidence takes the situation much further than the plaintiff simply having to be careful with her duties.  While the plaintiff freely conceded she had to stop work in disability because of her shoulder injury, Dr Preston confirmed an  unofficial agreement that the plaintiff not do the morning shift and that staff help her out with heavier tasks from 2006.

306The plaintiff had a diminished work capacity, even before the shoulder injury in 2013, with her having to structure her work day to cope with back pain. Her inability to carry out unrestricted physical tasks because of her back pain, continues to the present day and is a relevant pain and suffering consequence.[94]

[94]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35]; Haden Engineering v McKinnon (supra) at paragraph [15] and Peak Engineering & Anor v McKenzie (supra) at     paragraph [38]

Hip condition

307There was a medical argument whether the plaintiff’s hip pain was related to her back, with Mr Miller and Dr Preston of the view it was, and Professor Love having a contrary view.

308In the end, resolution of this issue is not central to the outcome of this application as the plaintiff’s evidence, which I accept, is that her hip gives her little trouble at the moment and the overwhelming majority of her symptoms are related to her lumbar spine as Professor Love commented in March 2021.[95]

[95]T113

309Further, the 2020 ultrasound of the right hip showed “mild” bursitis.

310On the plaintiff’s evidence, there had been some improvement in her hip condition, and it plays very little role in her current presentation – a situation which seems to have been accepted by the defendant.[96] 

[96]T109

Other conditions

311In Peak Engineering Pty Ltd & Anor v McKenzie,[97] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[97]        Supra

312In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ...  at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[98]

[98]        At 1

313The President found that the judge was:

(a)   bound to identify, and exclude, the continuing consequences for the plaintiff of the non-compensable injury; and

(b)   when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[99]

[99]        At paragraph [2]

314While it is in issue whether the hip is related to the back, it is not of real relevance to a Peak[100] analysis in this case, as the plaintiff has stated that her ongoing hip problems are minor compared to her back.

[100]Supra

315Problems with the left knee now really involve kneeling on the ground, and the plaintiff can cope with this situation by kneeling on a pillow.  When Mr Zayontz reviewed the plaintiff in September 2020, although she had some ongoing symptoms, she had had an excellent result from an intra-articular cortisone injection.  She has had no need to take up his offer of further treatment.

316While there was significant treatment for the plaintiff’s shoulder in 2013, of more recent times, she has not required further treatment.  As at February 2015, operating surgeon, Mr Soo, had not scheduled any further appointments.   Any current shoulder restriction is limited to overhead activity.

317Although the plaintiff’s ability to undertake physical activities is restricted, to a lesser degree, by her right shoulder and left knee condition, I accept the main problem she faces day to day is back pain in terms of her activities. 

318The plaintiff’s cancer, diagnosed in 2016, is in remission.

319There having been no real improvement in the plaintiff’s lumbar condition since 2006, despite various forms of treatment, I am satisfied her lumbar impairment is permanent.

320Taking into account all the evidence, excluding the consequences of the plaintiff’s non compensable conditions, I am satisfied the plaintiff has a serious injury in relation to her lumbar spine, the consequences of which are permanent – ongoing pain and restriction, need for painkilling medication, interference with domestic and social activities and work.  Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering in relation to her incident injury.

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