Grbevski v Westpac Banking Corporation
[2011] VCC 1482
•14 October 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04065
| PENNY GRBEVSKI | Plaintiff |
| v | |
| WESTPAC BANKING CORPORATION | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17, 18, 19 and 22 August 2011 |
| DATE OF JUDGMENT: | 14 October 2011 |
| CASE MAY BE CITED AS: | Grbevski v Westpac Banking Corporation |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1482 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – serious injury – Section 134AB(38)(a) – low-back injury – pain and suffering damages – loss of earning capacity principles – whether “serious injury”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with | L N Christie & Co |
| Mr G Pierorazio | ||
| For the Defendant | Mr G K Coldwell | Gadens Lawyers |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought Originating Motion filed on 13 September 2010 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of or in the course of her employment with the defendant. The plaintiff alleges she suffered injury to her lower back at work with the defendant on or about 4 November 2004.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages.
3 The following evidence was adduced or tendered during the hearing:
• The plaintiff gave evidence and was cross-examined. •
Mr Paul S D’Urso, neurosurgeon, gave evidence and was cross- examined.
• The plaintiff tendered the following documents:
ƒ Exhibit A, the Plaintiff’s Court Book, pages 14 to 166 inclusive; ƒ Exhibit B, the Defendant’s Court Book, pages 10 to 11, 18, 25, 26,
39 to 46, 56 to 76, 85 to 88 and 123 to 125.
• The defendant tendered the following documents:
ƒ Exhibit 1, DVD film dated 24 to 27 February 2009; ƒ Exhibit 2, DVD film dated 14 December 2009; ƒ Exhibit 3, DVD film dated 26 April 2011; and ƒ Exhibit 4, the Defendant’s Court Book, pages 12 to 17, 19 to 24,
27 to 32, 33 to 38, 47 to 55, 77 to 84, 89 to 97 and 120 to 122.4 At the commencement of the application, Mr Coldwell, on behalf of the defendant, stated that the issues for consideration from the defendant’s perspective were:
(a) the extent of the consequences of the injury to the plaintiff; (b)
the extent to which the plaintiff’s ability to work has been compromised by the injury and the consequences of the injury; and
(c) the credit of the plaintiff, in particular issues of reliability.
The Statutory Scheme
5 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
6 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment with the defendant on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Sub-section (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section (38). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
7 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
8 The plaintiff was born on 10 November 1970 and is now aged forty years. She is a married woman and the mother of two children aged eleven and thirteen. The children live in the family home with the plaintiff and her husband. The plaintiff was educated to Year 12 at secondary school level. She then went on to do a Bachelor of Arts and a Diploma of Education.[3]
[3] Plaintiff’s Court Book (“PCB”) 15
9 After completing her tertiary education, the plaintiff commenced employment with the defendant in February of 1993. Her employment was full-time. She was promoted to team leader in 1995. She remained as a team leader until 1997, when she took a break from work in order to have her first child. The plaintiff returned to full-time employment from 1999 to 2001, when she had her second child. In 2003, the plaintiff returned to work with the defendant on two shifts of eight hours per day. The injury, the subject of this application, occurred on 4 November 2004.
10 The plaintiff returned to work after treatment in December 2006. Her return to work was on light duties. She remained at work with the defendant until August of 2007, when she ceased work due to her symptoms arising from the injuries, the subject of this application. On 20 October 2008, the plaintiff’s employment with the defendant was formally terminated.[4]
[4] PCB 24; T 46-47
Injury with the Defendant
11 The plaintiff was a team leader at the Business Loans Centre of the defendant. Her role included hands-on scanning of security documents at her place of work. Part of the scanning process was carrying boxes of documents to the relevant place so that they could be scanned.[5]
[5] PCB 17
12 On or about 4 November 2004, the plaintiff was carrying boxes of documents in the course of her role as team leader, when she felt great pain in her back. The pain was of such a nature that she had to lie on the floor of the work premises for the rest of her shift. She then drove herself home but had to be helped from the car by her husband once she arrived at her home.[6]
[6] PCB 18, paragraph 12
13 In the plaintiff’s Claim Form[7] and the Injury Notification Report,[8] the plaintiff describes the injury as occurring while she was moving boxes from the back of the scanning room to the front and also picking packets off shelves.
[7] DCB 3
[8] DCB 7
14 There is no contest from the defendant that the injury occurred as described by the plaintiff. The issue in this application was whether the consequences of the injury were as significant as the plaintiff was stating and to such an extent to satisfy the statutory test for serious injury.
The Plaintiff’s Medical Treatment
15 The plaintiff was injured on 4 November 2004. On 6 November 2004, the plaintiff attended at the Emergency Department of the Northern Hospital and was admitted to hospital until 8 November 2004.[9]
[9] PCB 64
16 On 9 November 2004, Dr Pinto, general practitioner, attended the plaintiff’s home. He arranged for the plaintiff’s admission to North Park Private Hospital under the care of Dr Victor Karlov. The plaintiff remained in North Park Private Hospital for two weeks, where she underwent physiotherapy and bed rest.[10]
[10] PCB 65
17 In March 2005, the plaintiff was then referred to Olympia Private Rehabilitation Hospital under the care of Dr Lim.
18 On 21 March 2005, the plaintiff underwent an MRI examination.[11] The conclusion for the MRI scan was stated as follows:
“Mild disc bulge at L3-4 with evidence of annular tear. Moderate midline posterior disc protrusion at L4-5 which indents the thecal sac, but without evidence of neural compromise. Mild circumferential disc bulge only at L5-S1, without evidence of annular tear.”
[11] PCB 148
19 Upon completing a full course of in-patient and out-patient treatment at Olympia Private Rehabilitation Hospital, the plaintiff then returned to work on light duties in December 2006.
20 On 16 August 2007, the plaintiff was examined by Mr David de la Harpe, orthopaedic surgeon, at the Epworth Consulting Rooms. Mr de la Harpe referred the plaintiff to Dr Stephen de Graff, at the Pain Management Section of Epworth Rehabilitation in Richmond. Mr de Graff first assessed the plaintiff on 17 August 2007. The plaintiff was admitted to the Epworth Pain Management Centre on 22 August 2007 and she remained an in-patient of that hospital for approximately five weeks.[12] In the course of her time in the Epworth Hospital, she was treated with Prednisolone and Norspan patches, which were applied every week.[13]
[12] PCB 20
[13] PCB 57
21 The plaintiff was reviewed by Mr de la Harpe on 18 October 2007 and he diagnosed that the plaintiff was suffering an increase in back pain with left groin pain. He found that there was still no radicular component to the pain.[14]
[14] PCB 76(a)
22 On 11 February 2008, the plaintiff had a further MRI scan performed.[15] Mr de la Harpe’s opinion was of the opinion that the MRI scan showed that she had –
“a significant L4-5 central to left paracentral disc prolapse which was
enlarging compared to last year.”[16]
[15] PCB 147
[16] PCB 76(b)
23 The plaintiff’s current treatment is overseen by her general practitioner, Dr Leslie Pinto. The latest MRI scan was performed on 8 July 2011.[17] The report in relation to that MRI scan concluded:
“L4-5 disc degeneration, including annual tear together with mild disc bulge, without overt neuro-impingement. Judging by the report of the outside MRI dated 21/3/2005, this disc bulge would appear to be similar, though with no annular tear reported at L4-5 previously.”
[17] PCB 74
24 The plaintiff is currently receiving medication for pain in the form of prescribed Panadeine Forte. None of the treating medical practitioners have suggested that surgery is an appropriate course for the plaintiff at this time.
The Medical Opinions
25 Dr Leslie Pinto of Rochdale Medical Centre has been the plaintiff’s general practitioner for a period prior to and subsequent to the work accident. Dr Pinto provided three medical reports in this application dated 19 July 2006, 3 November 2008 and 20 July 2011. Dr Pinto notes the treatment of the plaintiff for previous low-back complaints arising from a motor vehicle accident in July 1995. He states that there was no attendance for low-back pain between August 1995 and November 2004.[18] In his opinion, the work injury in November 2004 is a cause of the plaintiff’s current incapacity.
[18] PCB 66
26 In the report dated 20 July 2011, Dr Pinto affirmed the previous diagnosis as follows:[19]
“The work injury in November 2004 caused a severe injury to a previously injured L4-5 disc. Additionally, there is an annular tear and disc bulge at L3-4 level that was not noted on the CT scan of 1995 – it is my understanding that an annular tear is not able to be identified on CT scan therefore I cannot state whether the injury to the L3-4 disc was sustained in 1995 or 2004.”
[19] PCB 68
27 Dr Pinto went on to say that, after a consideration of a recent MRI scan dated 8 July 2011:[20]
“It is now concluded that there is an L4-5 disc degeneration, including annular tear together with a mild disc bulge, without overt neuro impingement. Judging from the report of the outside MRI dated 21 March 2005, this disc bulge would appear to be similar, though with no annular tear reported at L4-5 previously.”
[20] PCB 69 and PCB 74
28 Dr Pinto then expressed the opinion that the plaintiff is totally and permanently incapacitated for pre-injury employment and is presently incapacitated for all employment.[21]
[21] PCB 69
29 Mr Bruce Love, orthopaedic surgeon, reported on the plaintiff in respect of the injury on 7 August 2008. Mr Love does not appear to have obtained a history from the plaintiff concerning her previous low-back injury. Mr Love noted the MRI examination and that there was a significant protrusion of the L4-5 intervertebral disc with endplate oedema consistent with disc degeneration at that level. Mr Love notes that surgery could be an option but is cautionary about taking such action. Mr Love goes on to opine that the plaintiff does not have any work capacity and that incapacity is likely to continue for the foreseeable future.[22]
[22] PCB 164
30 Mr David de la Harpe, orthopaedic surgeon, examined the plaintiff for the purposes of treatment following her work accident. Mr de la Harpe first reviewed the plaintiff on 16 August 2007.[23]
[23] PCB 76 (a)
31 Mr de la Harpe, on examination, found that there were no neurological deficits in the lower limbs. He observed:
“The plaintiff had a normal gait and a normal stance, and an unimpeded
range of movement of her combined movements of the lumbar spine.”[24]
[24] PCB 76 (a)
32 In his opinion, the MRI scan showed three levels of degenerate disc in the plaintiff’s back but there was no surgical option for her, and he organised some rehabilitation.[25]
[25] PCB 76 (a)
33 On 18 October 2007, the plaintiff returned to Mr de la Harpe complaining of increasing back pain and left groin pain. There was no radicular component to the pain. Mr de la Harpe maintained his opinion that surgery was not an option for the plaintiff but in his own words:[26]
“I was clutching at straws but I organised an L4-5 epidural injection of
local and steroid.”
[26] PCB 76 (c)
34 On the third visit by the plaintiff to Mr de la Harpe on 26 May 2008, the plaintiff had a further MRI scan. Mr de la Harpe was of the view that it clearly showed that she had a significant L4-5 central to left paracentral disc prolapse which was enlarged compared to last year. The plaintiff was not suffering a clear L5 radiculopathy. In his opinion, Mr de la Harpe thought the plaintiff’s pain was atypical and a simple microdiscectomy may give her significant relief. However, it was not a straightforward L5 radiculopathy. The plan of conservative management was followed.[27]
[27] PCB 76 (b)
35 Mr de la Harpe’s opinion was that the accident of 4 November 2004 had contributed to exacerbating a pre-existing degenerative low-back condition. In his opinion, there was only a small possibility that surgery might be required in the future if the plaintiff’s L4-5 disc prolapse becomes larger to the point of becoming compressive and causing L5 radiculopathy.[28]
[28] PCB 76 (c)
36 On the question of work capacity, Mr de la Harpe was of the view that the plaintiff had a capacity for sedentary work in the future based on her age and educational qualifications. However, an occupational physician would be better equipped to give an opinion regarding employment possibilities for her. He went on to say:[29]
“I feel she has adequate qualifications to be able to be employed in a sedentary nature in the future but certain restrictions would have to apply.”
[29] PCB 76 (c)
37 The restrictions, in Mr de la Harpe’s view, were that the plaintiff was not to lift more than 5 kilograms; no repetitive bending or twisting; no sitting or standing in one fixed position for more than thirty minutes.[30]
[30] PCB 76 (c)
38 Mr Stephen de Graaff is a pain specialist based at Epworth Rehabilitation in Richmond. He has been treating the plaintiff since 17 August 2007. In his report dated 20 July 2011, he set out the treatment and regime of pain management that the plaintiff has been undergoing since the time he first saw her. He noted that her current intake of medication was four tablets of Panadeine Forte per day.[31]
[31] PCB 59
39 Mr de Graaff sets out the plaintiff’s current position as follows:
“Mrs Grbevski presents with a persisting pain picture involving mechanical back pain, with neuropathic pain involving the left pelvis, hip and groin regions secondary to an L4-5 disc protrusion on a background of a degenerative lumbar spine. There has been an associated sleep disorder and lowering of mood.”[32]
[32] PCB 60
40 Mr de Graaff is of the view that surgical intervention is unlikely to improve the plaintiff’s symptomology. He states that she has a Chronic Pain Syndrome and the most appropriate management is conservative management with home exercise and self-help programs with intermittent physiotherapy and appropriate analgesic medication.[33]
[33] PCB 61
41 Mr de Graaff took a history from the plaintiff as follows:
“Mrs Grbevski has become essentially housebound. It has impacted upon her relationship with her husband and family. Her husband has become her carer for activities beyond light domestic duties. She relies heavily on her husband to get her to appointments and back but his availability is limited due to his employment. Mrs Grbevski has been unable to fully participate in her children’s education and development due to her pain and loss of function. She is unable to complete heavier domestic duties and finds her limitation as a mother and wife extremely difficult.”[34]
[34] PCB 61
42 I note that Mr de Graaff has not had the advantage of seeing any of the video surveillance film shown in this application and that his opinion is based on accepting the history given to him by the plaintiff.
43 Mr de Graaff goes on to say that, in his opinion, the plaintiff is totally and permanently incapacitated for all work.[35]
[35] PCB 62
44 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff for the purposes of the preparation of medico-legal reports. His reports are dated 1 April 2010 and 7 July 2011.
45 In his first report, Mr Brearley took a history from the plaintiff that she had constant pain of variable severity in the lower back and some radiation to her groin. She had no leg pain. The plaintiff said the pain was made worse by sitting for more than fifteen minutes or so, and the same with standing or walking. The plaintiff went on to give a history of being unable to cope with the heavier aspects of housework and that she could not do the gardening or lawn mowing. She also stated that she was unable to play tennis with her children.[36]
[36] PCB 85
46 Mr Brearley described surgery as a possibility in the future. He stated that if the L4-5 disc prolapse were to increase in size and if there was an alteration in her symptoms or she developed clear signs of radiculopathy, then surgery in the form of a microdiscectomy may be performed.[37]
[37] PCB 87
47 Mr Brearley took a history and accepted from the plaintiff that recreationally she is no longer able to participate in children’s activities such as attending school excursions and helping in the classroom. She had difficulty dancing at parties and social outings are less frequent than formerly because she is unable to sit for long; she avoids long drives and does not go for long walks, which she did previously; she has difficulty shopping.[38]
[38] PCB 88
48 In his later report, Dr Brearley described the plaintiff’s condition as a mechanical lumbar back pain resulting from intrinsic rupture of the L4-5 intervertebral disc.[39]
[39] PCB 91
49 Mr Brearley’s opinion on the plaintiff’s work capacity is noted in his latest report. He notes that the plaintiff had a strong desire to return to work. He stated that:
“Theoretically she could work for three hours a day, three days a week
doing administrative work only.”[40]
[40] PCB 94
50 Mr Brearley noted that the plaintiff would be quite unreliable in her attendance at work as she does have exacerbation of back pain at frequent intervals. The unpredictability of her back pain would be an impediment to employment.
51 I note that Mr Brearley was not shown any of the video surveillance films that formed part of this application. Nevertheless, in a theoretical sense he found that the plaintiff was able to do some work, amounting to a total of nine hours per week.[41]
[41] PCB 94
52 Dr Helen Sutcliffe, occupational physician, provided a report on the plaintiff’s condition dated 28 May 2011. Dr Sutcliffe took a history from the plaintiff that she tries to keep as active as possible but was limited in her walking to twenty minutes and limited in standing or sitting for a twenty-minute period. The plaintiff gave a history of having difficulty getting in and out of a car, that she was unable to use a shopping trolley and that her leisure activity of scrapbooking is now beyond her capacity.[42]
[42] PCB 99
53 Dr Sutcliffe, after reviewing the treatment regime to date, formed the opinion that the plaintiff has a capacity to perform limited work of three hours at a time, two days a week, in duties where she can sit and stand at will and where there is a capacity to change her posture from sitting to standing to walking.[43]
[43] PCB 103
54 Dr Sutcliffe was not shown the surveillance videos, that were part of this application, that have been shown to other medical practitioners.
55 Mr Paul D’Urso, neurosurgeon, has treated the plaintiff. In this application, Mr D’Urso gave evidence and was cross-examined. Mr D’Urso prepared two reports for this application: the first dated 31 March 2010[44] and the second dated 1 August 2011.[45]
[44] PCB 77
[45] PCB 82a
56 Mr D’Urso noted in his first report that when he first examined the plaintiff she gave a history of experiencing chronic back pain which she rated as 8 out of 10 on the Visual Analogue Scale. He took a further history that her sleep was interrupted every two hours during the night.[46]
[46] PCB 77
57 Mr D’Urso diagnosed the plaintiff with symptomatic two-level lumbar disc degeneration prolapse.[47] He stated there was no significant abnormality that had been identified at the L4-5 level but progressive prolapse at the disc had been identified on serial imaging. He attributes this condition to the work injury complained of by the plaintiff.
[47] PCB 78
58 Mr D’Urso was of the view that surgical intervention would be an option for the plaintiff’s management. He concluded that the surgery would be better indicated should radicular leg symptoms develop or neurological impairment develop. It is to be noted that at this stage those developments have not taken place.[48]
[48] PCB 78
59 In his initial report, Mr D’Urso was of the view that he would be surprised if there was any capacity for employment in general. He went on to say that the extent of the employment would be ten hours per week. His opinion was that it was unlikely that she would be able to perform any type of employment at the present time or into the foreseeable future.[49]
[49] PCB 70
60 In his later report dated 1 August 2011, Mr D’Urso noted that the plaintiff was now sleeping reasonably at night. In his examination, he noted that her spine is morphologically normal. He noted that there was no evidence of neural impingement in the radiological examination of 8 July 2011.[50] However, he remained of the opinion that surgery was an option for her condition but did not recommend surgery at this stage. His opinion was that the plaintiff should undergo a program of core stability exercise and hydrotherapy exercise to be implemented.
[50] PCB 82
61 On the question of work capacity, Mr D’Urso changed his opinion. He was of the view that the plaintiff was able to perform part-time light employment and thought that the part-time employment could be up to twenty hours per week.[51]
[51] PCB 82b and c
62 Mr D’Urso gave evidence in this case and was cross-examined. He outlined that he had a different approach to Mr de la Harpe in terms of the surgical strategy. He stated:
“My personal opinion would be that a microdiscectomy would be a waste of time and I would be more inclined to offer her a fusion rather than a microdiscectomy. So I would differ on that opinion.”[52]
[52] T 117, L4-7
63 In the course of his evidence, Mr D’Urso stated that he did not fully accept the patient’s explanation of pain. He stated:
“I look at the way they present and then I draw my own conclusion as to how severe the pain is. For example, someone who is complaining pain 8 out of 10 taken at face value, I wouldn’t be saying that they can go back to work 20 hours per week.”[53]
[53] T 122, L6-10
64 It is to be remembered that Mr D’Urso was given a history by the plaintiff of having pain levels of 8 out of 10. It was clear that he did not accept everything that the plaintiff was telling him about her level of pain.
65 Shortly after this evidence was given by Mr D’Urso, he was then shown the video surveillance films. After viewing the film relating to 24 February 2009, Mr D’Urso was asked this question:
“Q:
… Was there anything that you saw in that DVD that would suggest severe levels of pain or an eight of ten VAS level of pain?- --
A: No. Q: Was there anything on that video that you saw that would suggest
an impaired capacity to sit or stand?---A: Well, for periods of approximately half an hour to an hour it would
appear that she could sit and stand.Q: Although she is not a fast mover was there anything particularly
concerning about the way she was walking in that video?---A: Not particularly. Q:
That video that you've seen, was Ms Grbevski - were the restrictions on that video considerably less than the impression of Ms Grbevski's restrictions when she presented to you on those two occasions?---
A: Yes.”[54] [54] T 123, L7-21
66 Mr D’Urso then went on to express his view about the plaintiff’s work capacity after having viewed the video surveillance film and taking into account his own assessment on examination of the plaintiff. Mr D’Urso would place restrictions on her employment which included the plaintiff not performing repetitive bending, twisting or lifting activities. The plaintiff should not be required to lift from below the knee or from above the waist. The plaintiff should have ergonomic seating provided and should not be required to remain in a sitting or standing posture in excess of one hour. Mr D’Urso, with those restrictions, was of the view, after seeing the video and giving evidence, that the plaintiff could work full-time. In evidence, Mr D’Urso stated as follows:
“Q:
If Ms Grbevski wanted to go back to restricted work, as you've described, as far as lifting, bending, twisting, sitting for periods of an hour or more or standing for periods, as you've set out, and she wanted to do that on a full time, you wouldn't have any difficulty accepting that?---
A: No, I wouldn't. Q: If she wanted to work full time it would be with your blessing
I would expect, Mr D'Urso?---A: Yes. Q:
Certainly there's nothing contained in the activity on that film that would contra indicate a return to full time light work within the restrictions that both you and Mr de la Harpe have set out for Ms Grbevski?---
A: I'd recommend that a part time return to work program be
implemented before considering full-time employment.Q: But as far as the future you wouldn't rule out full-time work on what
you've just seen?---A: No I wouldn't rule it out.”[55] [55] T124, L9-24
67 Mr D’Urso’s opinion that sedentary work was the nature of employment that the plaintiff could undertake. I accept the opinion of Mr D’Urso. He gave his evidence in a measured and direct manner.
68 Mr Derek Billett, orthopaedic surgeon, reported to the defendant in respect of the plaintiff’s injuries. The latest of his reports is dated 12 April 2007[56] and is some four years old. He noted that the plaintiff was not taking any medication at that time.[57] I note that at the time of his last examination the plaintiff was currently in part-time work and that in order to assist that, Mr Billett further recommended home help for four hours per week. In the determination of this application, Mr Billett’s reports are of little assistance.
[56] DCB 27
[57] DCB 31
69 Dr Terrance Lim, a consultant in rehabilitation and pain medicine, also reported on the plaintiff. His last report is dated 25 July 2006. In 2006, Mr Lim does not nominate medication taken by the plaintiff at that time. He proffered the opinion that the plaintiff may return to teaching. The evidence in this case is that the plaintiff has never taught and that whilst she has maintained her registration with the Education Department, that teaching is not necessarily an occupation she could pursue.
70 Dr David MacIntosh, orthopaedic surgeon, assessed the plaintiff on behalf of the defendant. Dr MacIntosh reported on 25 January 2008. He was of the view that the persistence of her symptoms and her presentation suggests that the plaintiff had developed abnormal pain behaviour.[58] On the issue of work capacity, Dr MacIntosh was of the opinion that the plaintiff could return to work in the bank but could not sit in one position for extended periods. He was of the view that her capacity for a return to work was sustainable in the long- term. In his opinion, there was no medical or physical impediment to significant recovery and return to work. He acknowledged that in relation to heavier work and work involving repetitive bending or lifting or sitting or standing for lengthy periods, was something that she would not be able to do.[59] This opinion is quite dated and is of no real assistance other than by way of history in determination of this application.
[58] DCB 36
[59] DCB 37
71 Mr Michael Fogarty, orthopaedic surgeon, examined the plaintiff on behalf of the defendant. He reported on 2 March 2009. At the time of his examination, the plaintiff complained of having low-back pain in a band below waist level and occasional spread of the pain into her buttocks and groins. The plaintiff said that she could walk for about ten minutes once a day and do regular exercises for her low-back pain at home at least twice a day. After examining the radiological information at that time, he diagnosed the plaintiff with a significant aggravation of pre-existing degenerative disc disease and marked posterior protrusion of the L4-5 disc, plus an annular tear and minor protrusion at L3-4 and degenerative change with narrowing at lumbosacral level.[60]
[60] DCB 46
72 The plaintiff was also examined by Mr Michael Shannon, orthopaedic surgeon, on behalf of the defendant. Mr Shannon reported on four separated occasions: 1 April 2009; 10 February 2010; 30 July 2010 and 24 June 2011. In his first report, Mr Shannon notes that the Waddell’s signs are positive. He notes that there are non-organic features to the plaintiff’s presentation.[61] In 2009, Mr Shannon was of the view that the plaintiff could resume her work to the extent of two days per week at normal hours. There were to be restrictions on her sitting, standing, moving around and the bending and lifting required from her.[62]
[61] DCB 57
[62] DCB 58
73 Mr Shannon has had the advantage of observing the video surveillance films. In his report dated 30 July 2010, Mr Shannon states that the plaintiff was far more active than he would have anticipated on his previous assessments of her. He was of the view that the plaintiff could work on a part-time basis of four hours per day, four days per week and this would have comprised her normal working hours. It is to be remembered at this point that the plaintiff had reduced her hours to part-time work to fit in with her family situation prior to going off work.
74 In his last report dated 24 June 2011, Mr Shannon notes that the history from the plaintiff is that she is taking six Panadeine Forte tablets per day. He notes that the plaintiff’s true capacity is somewhat better than she would demonstrate in the consulting room and there are non-organic features to her presentation. Mr Shannon notes that the diagnosis is of lumbar disc degeneration with disc bulging at L4-5. He is of the opinion that the plaintiff has a capacity for employment, and states that she is capable of office work with restrictions on bending and lifting, with the option of varying her posture. He does not descend to whether this office work is part-time or full-time.[63]
[63] DCB 87-88
75 In summary, the preponderance of medical opinion is that the plaintiff’s condition has not progressed to the stage where she requires surgery at the present time or in the future. The medical practitioners acknowledge that she is suffering from some pain. There is a variation in the views of the medical practitioners as to the extent of the restriction of movement and ability to go about the activities of her daily life.
Credit of the Plaintiff
76 The plaintiff claims in this application for injury and consequences flowing from an incident which occurred on 4 November 2004. Prior to that injury, the plaintiff had had previous incidents with her back which required treatment and investigations of her back. On 8 August 1994, the plaintiff had an x-ray of her back.[64] On 18 August 1995, the plaintiff had a CT scan of her back. On 12 April 1999, the plaintiff had an x-ray of her back.[65]
[64] DCB 10
[65] DCB 11
77 The plaintiff, in her histories to doctors who examined her, either failed to tell the doctors of her prior back pain and injuries, or denied that there was any history of any back problem. In her history to Mr Derek Billett, orthopaedic surgeon, the plaintiff stated she had no past history of pain in her back until 4 November 2004.[66] She repeated the same history to Mr Billett in his report dated 25 July 2005.[67]
[66] DCB 16
[67] DCB 23
78 In her history to Dr David MacIntosh, orthopaedic surgeon, the plaintiff, on 24 January 2008, gave a history that she had no previous history of back problems, significant injuries or illnesses.[68]
[68] DCB 35
79 In her history to Mr Michael Shannon, orthopaedic surgeon, on 30 June 2008, the plaintiff stated that she had no previous history of back trouble until November 2004.[69]
[69] DCB 39
80 As late as 4 May 2011, when the plaintiff was examined by Dr Helen Sutcliffe, occupational physician, the plaintiff stated, as past medical history, that she had been well previously other than an operation to her knee at the age of eighteen.[70]
[70] PCB 98
81 It is clear from the history to these doctors that the plaintiff has been less than forthcoming about her prior back injuries and complaints. I do not accept that the plaintiff could have forgotten about the three radiological examinations of her back prior to the incident in November 2004.
82 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on behalf of the defendant. In his report dated 1 April 2009, he stated that there were non-organic features to her presentation with positive Waddell’s signs of axial compression and pelvic rotation, and simulated straight leg raising.[71] Mr Shannon later reported on 30 July 2010 after he had seen the surveillance films, and stated that, in his opinion, the presentation of the plaintiff to his examination was not entirely genuine.[72]
[71] DCB 57
[72] DCB 75
83 The plaintiff has been treated by a psychologist, Shalika Ranaweera. The psychologist reported on 31 October 2008 that the plaintiff told her that she was barely able to swim or walk ten metres without experiencing crippling pain. She isolates herself from social gatherings as she feels she cannot face not being the same person.[73] On this point, I shall return to the observations later in the reasons seen on surveillance film of the plaintiff. In short, the plaintiff has exaggerated to her treaters the extent and impact of the injuries on her.
[73] PCB 144
84 In the course of the hearing, Mr D’Urso was called to give evidence and was cross-examined. He, after seeing the surveillance film of the plaintiff and having examined her on two separate occasions, stated as follows:
“So if people have straight leg raise tests that would be less than ten or fifteen degrees and they don’t really have any nerve root compression, it’s a sort of, it’s sort an indication of non-organic behaviour.”[74]
[74] T 128, L18-21
85 In the course of the application, the plaintiff was shown three separate surveillance films. The first and most significant of the films was surveillance of the plaintiff on 24 February 2009, some four months after her history to the psychologist, Ms Ranaweera. It was clear on the film that the plaintiff had free movement, both walking, sitting and getting up and down from a bench at the side of the swimming pool. She was able to reach into her car and flex her back fully in order to retrieve something on the other side of the vehicle.
86 The plaintiff’s explanation when challenged about the swimming video was:
“I would have had had pain, and I know – that day was a lot warmer day
than the winter day so I remember that day being quite warm.”[75]
[75] T 84, L2-4
87 I find, from my observations of that day and the films on 14 December 2009 and 27 February 2009, that the plaintiff has a much greater range of movement and ability to engage in normal activities than she was giving evidence about or had given as histories to the doctors.
88 On 26 April 2011, the plaintiff was again observed and filmed engaging in social activities at a restaurant with friends. On my observation of the film, the plaintiff was able to sit for a considerable time in the restaurant and engage in that social occasion. This is at odds with her history to doctors and treaters about the impact of the injury on her.
89 I conclude, on the credit of the plaintiff, that she is given to exaggeration about the effect of her injuries on her, and I accept the opinion of some of the medical practitioners who state that she exhibits abnormal illness behaviour. This finding is not fatal to her application in this case, but it makes a proper assessment of the consequences for her far more difficult.
The Consequences
90 I have read the affidavits of the plaintiff sworn on 29 April 2010 and 29 July 2011. I have also read the affidavit of the plaintiff’s husband, Mr Con Grbevski, dated 29 July 2011. I have considered the evidence of the plaintiff and her oral evidence given and tested by Mr Coldwell in cross-examination. I assessed the plaintiff as a reasonable straightforward person who was somewhat pre-occupied with her medical condition and the limitations to her physical capacities as she saw them. I do not accept that she is a stoical person and is someone who has continually sought treatment for her pain and continued physical limitations.
91 The consequences that the plaintiff has suffered as a result of injury to her lower back are as follows.
• The plaintiff has difficulties with interrupted sleep and sleeping patterns. In her affidavit dated 29 July 2011, she states: “My sleep is also disturbed because of the pain. Most nights I have difficulty getting to sleep. Then once I finally manage to get to sleep I find I am woken by the pain.”[76]
[76] PCB 27
This statement in her affidavit is confirmation of her earlier affidavit,
wherein she stated:
“My sleep has been affected by my back pain.”[77]
[77] PCB 22, paragraph 25
The plaintiff’s statement about sleep is supported by her husband in his
affidavit, wherein he deposes:
“Penny’s sleep is poor. She is very restless in bed and is
constantly getting up.”[78][78] PCB 33
In the history taken by Mr Paul D’Urso for his report of 31 March 2010, the plaintiff reported that she was sleeping for two hours at night before waking.[79] It is to be noted that in a later report, Mr D’Urso took a history that she slept reasonably well at night. I note that Mr de Graaff has a history of the plaintiff having associated sleep disorder relating to her back pain.[80] I accept that the plaintiff is suffering from sleep disturbance and difficulty in obtaining proper rest in the evening. This is a very considerable consequence for her.
[79] PCB 77
[80] PCB 60
•
The plaintiff gave evidence that she constantly takes Panadeine Forte for pain relief and that during the course of the hearing she took Panadeine Forte to enable her to continue giving evidence. In her affidavit dated 29 July 2011, the plaintiff states that she was reliant on Panadeine Forte, on the average three a day.[81] In her evidence, the plaintiff stated that she was presently taking on average about four Panadeine Forte tablets per day.[82] In her history to Mr Michael Shannon, the plaintiff stated that she took an average of six Panadeine Forte tablets per day.[83] I accept that the plaintiff takes Panadeine Forte medication in order to manage her pain symptoms. It is difficult to be certain of the average consumption of pain medication. It is clear from the evidence in this case that the amount of Panadeine Forte consumed by the plaintiff fluctuates. I find that the need of the plaintiff to take strong pain medication is a very serious consequence for her and the fact that she continues to take the medication is a sign that she will always be taking medication to deal with her pain levels.
•
The plaintiff complains that as a result of her injury she is in constant pain. The histories to various doctors vary as to the level of pain that the plaintiff is suffering from time to time. On the Visual Analogue Scale (VAS), the plaintiff gives varying histories of between 8 out of 10 and 5 out of 10 for the level of her pain. In the course of her evidence, the plaintiff exhibited signs of grimacing and positioning herself in order to alleviate pain. It is difficult to assess a witness in the witness box on an issue such as this. When questioned about the issue of pain by Mr Coldwell, for the defendant, the plaintiff said as follows:
[81] PCB 27, paragraph 6
[82] T 97, L29-30
[83] DCB 85
“Q: Was that a constant problem or an occasional problem
where the pain was 8 out of 10?---
A: As far as those discussions go, he asked me to rate it at that
point and I rated it.Q: Is 8 out of 10 a fair estimate of your pain on a daily basis?--- A: Yes. Q: Do you have times when the pain is significantly better than
that?---A: Not significantly better, it can be a little bit lower, yes.”[84] [84] T 55, L17-24
I accept that the plaintiff suffers from pain which is sometimes more severe than others. She has exhibited signs of abnormal illness behaviour as found by various of the medical practitioners referred to earlier in this judgment. However, I find that the level of pain for the plaintiff and the fact that it is continuing is a considerable consequence for her.
•
The plaintiff says that her inability to perform all domestic tasks in the household has had a considerable impact on her life. She concedes that she is able to stretch up and reach clothes in a cupboard or reach other items that are in a cupboard if she has to. She says that when she does that she does it with pain.[85] In her affidavit, the plaintiff sets out that she has a limited capacity to garden and perform the heavier domestic duties. I accept that the plaintiff does not perform these heavier tasks as a consequence of her injury. I accept this is a very considerable consequence for the plaintiff.
•
I have set out the treatment that the plaintiff has undergone in respect of these injuries. It is clear that she has had a number of inpatient hospitalisations and an injection to alleviate her pain. She has undergone a pain management course at Olympic Rehabilitation Centre. She has also been an inpatient at Epworth Hospital and been treated with Prednisolone. Whilst these treatments are past history, they are indicators of the very considerable consequences for the plaintiff.
[85] T 67, L 7-15
Conclusion as to the Consequences to the Plaintiff
92 I conclude that when gathered together, these consequences outlined above amount to what can be fairly described as being more than “significant” or “marked” and as being at least “very considerable” pain and suffering consequences for the plaintiff.
Loss of Earning Capacity
93 In order to establish that the plaintiff have leave to bring proceedings in respect of a loss of earning capacity, she must establish that:
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s.134AB(38)(e)(i); and also (b) after the date of hearing, the relevant loss of earning capacity will continue permanently: s.134AB(38)(e)(ii). 94 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 95 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
96 The defendant concedes that if the Court accepts that the plaintiff would have returned to full-time employment after 2006, as she deposed in her affidavits, then the “without injury” earning capacity would be in the vicinity of $1,100.00 gross per week. This conceded level of “without injury” earnings is approximately the same position put forward on behalf of the plaintiff. The first issue to be determined in this application is whether or not the plaintiff could return to work and, if so, for what period of time. The plaintiff had not worked since August 2007.
97 The plaintiff has not looked for employment since her last return to work effort with the defendant. In evidence, the following exchange took place:
“Q: … if the records that show that you got a letter on 20 October 2008 stating that your employment had ceased with Westpac, that sounds about right to you?--- A: Yeah, it would. Q: So you've been well aware since that date that you're no longer on
Westpac's books?---A: That's correct. Q: Therefore you're free to look at any employment options outside
Westpac if you so chose?---A: No, I wasn't aware of that.”[86] [86] T 47, L4-12
98 And further:
“Q: Have you looked on the internet to see whether there are any jobs
on the internet?---A: No, I haven't. No, I haven't. Q: Not even curious as to what's out there?--- A: Haven't looked. … Q:
Employment wise?---
A: No, I haven't looked. Q: Just haven't looked. No interest at all as to what possible jobs are
out there that you could do?---A: Not no interest. Didn't know that I was allowed to. But I don't
know, sorry no I haven't looked.Q: Has anyone told you that you're not allowed to apply for a job?--- A: No one, no. Q: And you honestly are saying to this Court that you've been held
back from applying for jobs because of - - - ?---A: Sorry, can you repeat that, like - - - Q: You are not under any impression that you're not allowed to apply
for jobs currently?---A: Not that I'm not allowed, I just don't know - no. Q: Have you made any enquiries through your friends as to work you
could do, suitable employment?---A: No. Q: Part-time work?--- A: No. Q: Nothing at all?--- A: Nothing. Q: You are aware in this case there are certain doctors that say
you're fit to do life (sic) type jobs?---A: Yes, I am. Q: That hasn't prompted you to go out and have a try looking for one
of these jobs?---A: No. Q: You just haven't made any attempt?--- A: No, I haven't. Q:
You have given some evidence about medication you're taking, do you recall seeing Mr Billett, a doctor you saw on several occasions for Westpac, starting from about the time you put in the claim back in 2004, and you've seen Mr Billett on three different occasions. The first time you saw him in December 2004. Then in July 2005, and then in April 2007, and he is at Level 7, 20 Collins Street, Melbourne, do you remember that doctor at the top of Collins Street?---
A: I do recall - I do recall a Dr Billett but I don't - I couldn't give you
specific dates, sorry.Q: His qualifications are from Cape Town, he might have a South
African accent, do you remember any doctors like that?---A: I might.”[87] [87] T 47, L23 – T 48, L 31
99 The onus of proof is upon the plaintiff in respect to loss of earning capacity. It is curious that the plaintiff would give evidence of her love for work and her job at Westpac, and at the same time not explore any other avenues for returning to work.
100 The medical opinions fall into three basic categories.
101 The first category is that the plaintiff has no capacity to work. The general practitioner, Dr Pinto,[88] Mr de Graaff[89] and Dr Love[90] all agree that the plaintiff has no work capacity at all.
[88] PCB 69
[89] PCB 62
[90] PCB 164
102 The next category of medical opinion is that the plaintiff has some work capacity, but those opinions do not state the extent of that work capacity. Dr MacIntosh, in answer to a question of work capacity of the plaintiff, states:
“She could return to work in the bank but could not sit in one position for extended periods. Therefore, to return to work she would need some modification of her work activities allowing her to get up and move around about every thirty minutes.”[91]
[91] DCB 37
103 In his opinion, the plaintiff had a capacity to return to work in the long-term.
104 Mr Michael Fogarty, in his report dated 2 March 2009, does not descend to whether or not the plaintiff has a work capacity. In short, he is of no assistance to any party in this case.
105 The third category of medical opinion is that the plaintiff does have a work capacity. Mr de la Harpe sets out his view about the plaintiff’s capacity for employment. He says that she has a capacity for sedentary work based on her age and educational qualifications but would defer to an occupational physician to determine the extent of that employment.[92]
[92] PCB 76 (c)
106 Mr Brearley sets out that the plaintiff has a capacity of working three hours per day, three days per week in administrative tasks.[93] That is a total of nine hours per week.
[93] PCB 94
107 Dr Helen Sutcliffe is of the opinion that the plaintiff has a capacity to work six hours per week, being three hours per day for two days per week on duties that are light in nature and where she has a flexibility for sitting, standing and walking.[94]
[94] PCB 103
108 Neither Mr de la Harpe, Dr Sutcliffe nor Mr Brearley has had the advantage of observing the surveillance film. In my view, the fact that these doctors have not had the advantage of at least seeing what is displayed in the surveillance film leaves their opinions at a disadvantage to the medical practitioners who have in fact seen the film.
109 Mr Michael Shannon has expressed the opinion that the plaintiff has a capacity of working four hours a day, four days a week with restrictions on lifting and movement. This opinion was given after he had viewed the surveillance film.[95]
[95] DCB 75
110 In his latest report dated 24 June 2011, Mr Shannon states that the plaintiff does have a capacity for employment. He does not state the limits by way of hours for that employment. He only notes that the plaintiff is capable of office work with restrictions on bending and lifting and with an option of varying her posture. By way of completeness, Mr Shannon notes that the plaintiff does not display her true capacity in the consulting rooms and that there are non- organic features to her presentation.[96]
[96] DCB 87-88
111 Mr D’Urso gave evidence in this case. He also had prepared reports in respect of the plaintiff. In his report dated 1 August 2011, he gave the opinion that the plaintiff was capable of part-time employment up to twenty hours per week. He placed the same restrictions on that employment, that other medical practitioners had put in place. In short, he thought she could do office work. During the course of his evidence, Mr D’Urso was shown the video surveillance film. After viewing the films and being further cross-examined, Mr D’Urso was of the opinion that the plaintiff could return to full-time employment after commencing on a part-time return to work program. It was clear from the evidence of Mr D’Urso that he had not fully accepted what the plaintiff had been saying to him in consultation. The surveillance films and the level of activity the plaintiff displayed on them as set out in his evidence was the basis for him extending the capacity of the plaintiff to return to employment; in this case, full-time employment.[97] I accept that Mr D’Urso is the medical practitioner in the best position to assess the plaintiffs work capacity. I accept his opinion.
[97] T 124
Video Surveillance
112 It was conceded by the defendant that over a period of fifteen days, 110 hours of surveillance was conducted on the plaintiff. The surveillance film that was shown to the Court totalled a little over seventy minutes of filming time. However, the surveillance film for the date of 24 February 2009 extended over a period from 11.00 am to approximately 3.00 pm. This is a total but not continuous observation of the plaintiff over a period of four hours. When assessing the plaintiff I have to be conscious of the content and context of the surveillance film of the plaintiff.[98]
[98] Church v Echuca Regional Health [2008] VSCA 153
113 On my observation, the plaintiff, whilst attending the swimming sports on 24 February 2009 and prior to arriving at the sports, was able to bend and reach into the boot of her car and obtain seats from the back of the car. She slung those seats over her shoulder and walked in an easy and free manner to the swimming pool. Whilst at the pool, she was able to walk forward, backwards and sideways whilst conducting video filming of the sports function. At one stage she broke into a slow jog without any apparent restrictions. She was seated on the side of the pool in conversation with other parents and attendees at the swimming sports. She was able to bend and twist from a seated position without any apparent stiffness or difficulty from her back.
114 At a later stage, after leaving the swimming sports, the plaintiff was seen with the seats, placing them in the boot of the car. She was then also able to get into the front driver’s side of the car and reach right over to the passenger side of the car to retrieve an item. It was quite clear that she could easily and readily get in and out of the car including bending and twisting.
115 It is fair to say that the plaintiff said of this movement and filming of her that this was just one day in her life of 365 days in the year.[99]
[99] T 91, L 9-17
116 The next most significant surveillance film, as far as I was concerned, was that of 26 April 2011. This surveillance extended over a period from approximately 11.00 am until about 2.30 pm. The total of the surveillance film was approximately eighteen minutes. The film showed the plaintiff seated at a restaurant with friends. It was clear that the friends, including the plaintiff, were enjoying a social outing around lunchtime with their children. It was clear that the restrictions about socialising outlined to doctors and in her affidavits were not the full story when looking at this film.
Conclusion
117 I conclude that, based on all of the evidence in this case, I am not satisfied that the plaintiff has suffered a loss of earning capacity to the extent of a 40 per cent reduction in her gross “without injury” earnings of $1,100.00 per week. Further, I am not satisfied that her condition or inability to work is permanent in the sense of the “foreseeable future”.
118 The plaintiff’s application for a serious injury certificate for loss of earning capacity is refused.
119 After a consideration of all of the evidence, I am of the view that this is a finely balanced case but ultimately, taking into account all the consequences suffered by the plaintiff as a result of her lower back injury, I am satisfied that such consequences, when judged by a comparison with other cases in a range of possible impairments, can be fairly described as being more than “significant” or “marked” and as being at least “very considerable”.
120 Accordingly, pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring common law proceeding for pain and suffering damages in respect of the low-back injury suffered by her on or about 4 November 2004.
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