Greaves v Lyndoch Warrnambool Inc
[2011] VCC 545
•17 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-03741
| Lateisha Anne Greaves | Plaintiff |
| v | |
| Lyndoch Warrnambool Inc | First Defendant |
| ABN: 26 066 985 408 | |
| & | |
| CGU Workers Compensation | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE KENNEDY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 May and 6 May 2011 |
| DATE OF JUDGMENT: | 17 May 2011 |
| CASE MAY BE CITED AS: | Greaves v Lyndoch Warrnambool Inc & Anor |
| MEDIUM NEUTRAL | [2011] VCC 545 |
| CITATION: |
REASONS FOR JUDGMENT
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Catchwords: application for leave to bring proceedings for damages pursuant to s.134AB of the Accident Compensation Act 1985 for pain and suffering – aggravation of degenerative change to lower back- whether plaintiff establishes a serious injury within s134AB(37)(a)
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N.R. Bird with | Stringer Clarke |
| Mr I.R Fehring | ||
| For the Defendants | Mr P.A Scanlon QC with | Lander & Rogers |
| Mr P.B Jens |
Background
1 The plaintiff was born on 11 November 1974 and is now 36 years old. She is separated from her former partner and has three young children.
2 The plaintiff completed secondary school in 1991 and undertook various courses before starting her family. She commenced casual employment with the defendant in October 2001 as a personal care attendant and later, in February 2002, as a registered Division 2 nurse working 40 hours per fortnight. The work was physical and involved moving heavy residents with the use of lifting machines.
3 On 19 October 2005, the plaintiff experienced pain in her lower back at work which gradually got worse and worse. The pain remained for several days but showed itself fully when she was visiting friends. She attempted to grab a newspaper from the couch from a standing position when her back suddenly “went” and she felt a sharp pain. She describes it as “terrible pain.” She was taken to the emergency section of the hospital, given morphine, and eventually discharged.
4 The plaintiff attended her general practitioner, Dr Oliver, on 24 October 2005 where she was informed she was unfit for duties for 2 weeks. She also completed an employee incident report. The plaintiff had a period off work, and commenced some physiotherapy, but commenced back on light duties around the start of November 2005. By January 2006 she was back on full duties.
5 The plaintiff subsequently experienced further aggravation to her lower back in February 2006 and May 2006 and had some further time off work. She subsequently left work with the defendant and now works only 9 – 12 hours a week as a personal care attendant for the Warrnambool City Council.
6 The plaintiff seeks leave to bring proceedings for the recovery of damages pursuant to s.134AB(a) of the Accident Compensation Act 1985 (“the Act”) for pain and suffering only.
7 Mr Bird, who appeared with Mr Fehring for the plaintiff, defined the injury as an aggravation of pre existing degenerative changes in the lower back occurring in October, 2005 with consequent impairment to the lower back.
Issues
8 Mr Scanlon QC, who appeared with Mr Jens for the defendant, accepted that there was a compensable aggravation injury.
9 He further accepted that the sole issue in the case was whether the injury was “serious” within the meaning of the Act.
Evidence
Plaintiff’s Evidence
10 The plaintiff swore two affidavits: an affidavit of 19 February 2010 and a further affidavit of 19 April 2011. She was also cross examined.
11 In her first affidavit she claims:
•
that she had previously only had relatively minor health problems, being quite “fit”: playing netball in the 1990s and with no problems with housework;
•
her lower back pain now (after the injury) remains “severe”. The pain is a burning, throbbing and aching pain and she also has referred pain in her right leg right down to her foot which occurs once every week;
•
that she has to be very cautious when doing heavy work. Showering is painful and sitting down is a problem as she gets agitated and experiences burning pain when sitting for longer than an hour;
•
if she is undertaking stationary activities such as washing dishes she can experience very bad pain and she has pain bathing and dressing her youngest child;
•
playing with her children has been affected; and she cannot attend scout group with her daughter because after only one session, she was in severe pain for the next couple of days;
• socialising has reduced; • she avoids long driving; • she experiences pain when carrying groceries; •
her pain affects her every day in all aspects of her day to day activities.
12 In her second affidavit she claimed:
• she takes Prothiaden as a muscle relaxant to assist sleep and 4-6 Panadeine Forte a day and occasionally up to 8; • she has “pain in the back all the time,” which is particularly bad when she has not taken medication for 2-3 hours; • physiotherapy gave some relief but when the funding stopped she could no longer afford it; • she usually wakes every 2 or 3 hours with back pain and wakes in the morning “stiff as a board”; • it is difficult to do things with the children; • undertaking mowing the lawn when her current friend can not help “knocks her about” (she is in a relationship with this friend but does not live with him full time); • she continues to have driving limitations; • she can do housework but has to be careful and has distributed jobs to the children; • she misses working in the nursing home. 13 Under cross examination:
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she had difficulty recalling her history but ultimately conceded that she had previously seen a chiropractor for migraines and had also been treated in the hip area but denied that she had had pain in her low back;
•
she accepted that she had not returned for massage therapy since November 2007 but said this was because she could not afford to;
•
she agreed that she had given up netball long before she was injured;
•
she agreed that she had ridden a motorbike approximately four times since her injury;
•
she agreed that she can participate as a parent in her child’s scout group (which involved two hours of physical activity) but said that the pain she would endure from doing this meant it would not be worth it given she had to work the next day;
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said that she worked (which work involved showering, cleaning and dressing people) because “I have to” and “with pain”;
•
said that whether it was “more difficult” to dress her child or shower/dress an elderly person “depends on the time of day”;
•
she agreed that she still socialised with friends including once a fortnight at a friend’s place, and that she was a daily user of facebook, but claims that her socialising had reduced as she no longer went to pubs/nightclubs because of back pain;
•
she confirmed that she takes 4-6 (and occasionally 8) Panadeine Forte every day to manage the pain, as well as Prothiaden and a calmative medication and Nexium. She also takes a bowel treatment;
•
accepted that she actually increased her hours in 2008 by working both at Lyndoch and for the City of Warrnambool because she “needed an income.”
14 The plaintiff also agreed that the DVD surveillance showed no apparent restriction in relation to her back which included footage of her bending over for quite some time in a car restraining her child.
15 However, a single mother has little choice but to restrain her child in a car. Moreover, as Mr Bird submitted, there is no surveillance which shows the plaintiff engaging in any prolonged, continuous or strenuous activity notwithstanding that there was 52 hours and 45 minutes of surveillance video taken (although there were apparently many occasions on which she was not seen).
16 Under re-examination she stated that:
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She was now working 9-12 hours a week and was “struggling” with these hours, feeling “terrible” and grabbing some tablets “first thing” when she gets home;
•
that she used to go out three or four times a week prior to her injury;
•
that Dr Viney (her GP) prescribes the Panadeine Forte and she gets three or four repeats at a time;
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that she does not get physiotherapy or massage today because she cannot afford it;
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that she has never been without pain since October 2005 and was in tears when she travelled to Colac and then had to come back for her case.
17 The plaintiff was cross examined and generally presented as an individual with a good work ethic. She was asked about a matter raised in a report of Dr Viney (of 27 September 2010) which stated that she had asked for a light duties certificate notwithstanding that she was undertaking normal duties with the Council. However, I accept her explanation under re-examination that she was not coping very well with the two jobs at the time. There were also occasions on which she disagreed with matters contained in doctors’ reports. However, the plaintiff sometimes found it difficult to recollect events under the pressure of cross examination. Busy doctors are also capable of recording inaccuracies.
18 Overall, I found the plaintiff to be a straightforward witness and am satisfied that any inconsistencies are explicable by the effluxion of time. I generally accept her evidence, including her evidence as to the effects of the injury on her.
Principles
19 In terms of pain and suffering, the plaintiff must show that the consequences to her of any impairment, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked, and as being at least very considerable.[1]
[1] See s.134AB(38)(c) of the Act; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33.20 As this case involves an aggravation injury, a determination must be made of whether there was an aggravation of the plaintiff’s condition arising out of or in the course of her employment. In order to do this, pursuant to the principles set out in Petkovski[2] and Angeletos[3] consideration must be given to the extent of the plaintiff’s impairment both before and after the alleged injury to determine if the aggravation is itself a serious injury as defined.
Nature and Extent of the Injury
Medical evidence
[2] Petkovski v Galletti [1994] 1 VR 436[3] Angeletos v Museum of Victoria [1999] 3 VR 15721 Dr Oliver, general practitioner, completed a report of 28 November 2005 wherein he confirmed that the plaintiff had sustained an injury and that work was a contributing factor. Her condition had improved at that stage with physiotherapy and medication though she was still only fit for modified duties.
22 Mr Schofield, (the defendant’s orthopaedic surgeon) completed a report of 28 November 2005, having examined the plaintiff on 23 November, 2005. He described the plaintiff as having no past history of back problems. He also stated that there was an onset of back pain on 19 October 2005 when the plaintiff was pushing a heavy patient in her wheelchair in and out of a sloped shower recess. He defined the injury as “an acute lumbar disc injury, probably causing a mild bulge with an annular tear at the posterior wall at the lumbosacral L4/5 disc.” He believed employment had been a significant contributing factor. The prognosis was uncertain until investigations were carried out.
23 Dr E Rafferty, radiologist, in his CT report of 12 December 2005 stated; “there is a disc space narrowing at L5-S1 and there is a fairly subtle central type of disc prolapse present. There is no obvious neural compression.”
24 Tony Grace, physiotherapist, completed a report of 25 February 2008. He stated that he first saw Ms Greaves on 25 October 2005, 5 days after she developed lower back pain at work which started gradually during the course of a heavy shift. He recorded the plaintiff stating that previously she had suffered minor episodes of back pain but nothing serious (although the plaintiff disagreed with this) and she had not previously sought treatment for her back. Examination of the lumbar spine showed a 50% reduction in the range of forward flexion. The left straight leg raise was to 45 degrees: right straight leg raise was to 65 degrees. Mr Grace gave a diagnosis of lumbosacral musculoligamentous strain and noted improvement by November 9, although she continued to suffer considerable discomfort. Her last visit was on May 26, 2006.
25 Dr Viney, general practitioner, completed 5 reports between February 2009 and March 2011. He first saw the plaintiff on 7 November 2007 (some time after the relevant injury) with left shoulder and thoracic pain.
26 In his first report of 11 February, 2009, he states that on 20 December the plaintiff presented with increased pain which extended to her lower back and down her right leg. In his later report of 26 September, 2009 he described her condition as being “chronic thoracic and lumbar pain” and that movement of the lumbar and thoracic regions were limited by pain. She had not been able to “fully engage” in physiotherapy and hydrotherapy and he would be very surprised if she returned to normal duties. He also reported that, since the onset of symptoms, she had experienced a marital separation and a gynaecological procedure.
27 In his most recent report of 21 March, 2011, Dr Viney diagnoses muscular ligamentous injury and opines that it was impossible to state that the plaintiff was unfit for pre-injury duties given she was providing home care duties. However, this appears to ignore any consequences on the plaintiff of undertaking such duties. Moreover, Dr Viney accepts that it was likely that her symptoms would be ongoing although, in his view, this was due to a range of issues not purely because of the injury to her back.
28 Daryl Warner, massage therapist, completed a report of 25 February, 2008, having seen the plaintiff in November, 2007. He noted that the plaintiff was “considerably inflamed” in the lumbar sacral area from L5 to S1 with several lesions located in the same area. He treated her twice over a period of 3 days in November 2007 and noted marked improvement at that time (which the plaintiff fairly accepted).
29 Mr Carey (orthopaedic surgeon) completed a report dated 3 February 2009 and saw the plaintiff once only in December, 2008 on referral by Dr Viney. He recorded that she told him she had developed increasing back pain in mid October, 2005. He stated that there was “no spinal deformity” but that the plaintiff’s movements were somewhat restricted because of back pain. He opined that she had diffuse spinal pain with no neurological component. His prognosis was guarded and he stated that he would expect the plaintiff to have discomfort/pain and disability into the foreseeable future of some degree.
30 Mr O’Brien, orthopaedic surgeon, completed a report of 11 March 2011. He records a history of the plaintiff experiencing pain in October 2005 while moving a resident and that the pain became extreme later at her friend’s place when she went to pick up the paper wherein she was admitted to hospital. He reports that the plaintiff describes “constant upper back and lower back pain.” He confirms that employment in the aged care facility has been a significant contributing factor to the plaintiff’s symptoms. He confirms that she presents with moderate disability and is confident that from a physical perspective she was not capable of returning to unrestricted nursing duties. He also suggests that she is not capable of unrestricted employment generally and any employment would require modification in her physical duties. This was the case with her 9 hours of employment undertaken per week. He also suggests it is unlikely that the hours could be increased significantly and that she will not return to full time employment even to undertake modified duties. He also confirms that she is limited in her general social, domestic and recreational duties and he believes this is likely to be a permanent situation.
31 The defendant’s doctors, Mr Paul Kierce and Mr Michael Troy provided reports related to the neck and shoulder not the subject of this proceeding, although Mr Troy still notes multiple level degenerative changes in the plaintiff’s lumbar spine (in October, 2009). Another defendant doctor, Mr Gale, general and trauma surgeon, completed a report of 22 September, 2009 but also concentrated on a different injury. However, he had seen an MRI report of 15 April 2009 which included reference to minor right paracentral disc protrusion at L5/S1 with a small annular tear. Minor disc bulging was also reported at L3/4 and L4/5.
Findings
32 Consistent with the proper concession of the defendant and with the plaintiff’s own evidence, the medical evidence generally supported both the existence of an injury and that it arose out of or in the course of employment.
33 In terms of the injury, both parties accepted the existence of an aggravation injury. The reports of Mr Schofield and Dr Rafferty together with the MRI report of April 2009 also suggest the injury involved the disc.
34 The reports of doctors Oliver, Schofield, and O’Brien all support the contribution of work which was also consistent with the plaintiff’s duties; contemporaneous attendance at the hospital; and that treatment was sought from the GP and Mr Grace in late 2005.
35 In such circumstances, I am satisfied that the injury arose out of or in the course of employment and that there is an ongoing impairment of the lower back resulting from this compensable injury.
36 Given the effluxion of time, I am further satisfied that the impairment is permanent in the sense that it is likely to last during the foreseeable future. This is particularly supported in the recent report of Mr O’Brien and also in the report of Mr Carey.
37 The issue then becomes whether the injury is serious.
38 As indicated already, I accept the plaintiff presented her case honestly and that that she has a good work ethic.
39 However, notwithstanding her injury, the plaintiff has been able to return to work.
40 Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd[4] stated that if the plaintiff is physically able to return to alternative employment, then it would ordinarily be difficult to conclude the pain and suffering consequences were “at least very considerable” unless the plaintiff was able to show significant pain or was otherwise significantly suffering physically from the injury.
[4] [2006] VSCA 292 at [24]41 However, Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2)[5] stated:
“I suspect that, but for the way in which 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 not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. 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.”
[5] [2008] VSCA 260 at [3] and also approved in Haden Engineering Pty Ltd v McKinnon [2010]
42 Ashley JA and Beach AJA further referred to the comments of Chernov JA in Stijepic v One Force Group Pty Ltd as follows:[6]
“[I]t is plain that Sumbul is not authority for the proposition that a return to alternative work is somehow determinative against a worker on the issue of pain and suffering consequences. The most that can be said, and all we take Chernov JA to have been saying, is that if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”
[6] [2009] VSCA 181 at [47]. These comments were also approved in Sutton v Laminex Group Pty
43 In this case, although the plaintiff has returned to work, I accept that she only works because, as a single mother “she has to.” I further accept that she feels “terrible” after working only 9-12 hours a week.
44 Although Dr Viney suggested that there was some “psychosocial issues,” there was little such reference in other reports.7 In any event, he appears to accept the need for medication for physical pain given he prescribes high doses of Panadeine Forte. Doctor Oliver and, more recently, Mr O’Brien, also suggest the plaintiff should only undertake modified duties consistent with a serious physical condition. Overall, therefore, I am satisfied that the consequences cited by the plaintiff are physical consequences and not psychological consequences.8
45 I further generally accept the plaintiff’s evidence as to the consequences upon her, with one exception. Thus, I am not satisfied that a single mother would be able to socialise as much as she once did as alleged.
46 In terms of Petkovski,9 as set out above, I accept that the plaintiff was injured during her employment in October, 2005. I also accept the plaintiff’s evidence that she did not have pain in her lower back prior to this injury. Even if she had experienced some “minor episodes” (as recorded by Mr Grace), there was no ongoing pattern of treatment nor time off work for her lower back. This must be compared with the events surrounding the incident in October, 2005, wherein she attended hospital, sought treatment from her general practitioner and the physiotherapist and and had time off work.
47 In Kelso v Tatiara Meat Co Pty Ltd10 Dodds-Streeton JA stated;
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
48 In my view, the consequences cited by the plaintiff, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked, and are at least very considerable. These consequences include pain all the time; a need for high doses of medication; interference with sleep; difficulties with household jobs and in playing with children; and limitations on driving. To this may be added her inability to return to nursing which she misses. Thus I accept the plaintiff’s evidence that she is already “struggling” with her present hours as a personal care attendant and I also accept, consistent with the recent report of Mr O’Brien, that she could not return to unrestricted nursing duties. I further reject the views of Dr Viney to the extent they differ given he gives no consideration to the effect on the plaintiff of undertaking her current duties.
49 In these circumstances, I am satisfied that the aggravation injury the plaintiff suffered in October, 2005 is itself a serious injury.
Conclusion
50 The plaintiff has satisfied me that she meets the definition of “serious injury” under s.134AB(37)(a) of the Act.
51 There will be leave to the plaintiff to bring proceedings pursuant to s.134AB of the Act for damages for pain and suffering in respect of the injury to her lower back on 19 October, 2005.
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Certificate
I certify that these 18 pages are a true copy of the reasons for decision of Her
Honour Judge Kennedy, delivered on 17 May 2011.
Dated: 17 May 2011
Sonja Mileska
Associate to Her Honour Judge Kennedy
VSCA 69 at [13] per Maxwell P
| Ltd [2011] VSCA 52 at [78] the plaintiff’s lower back. | 7 There is a reference to “non-organic pain syndrome” in Dr Gale’s report but he did not examine |
| 8 Which are not to be taken into account pursuant to s134AB (38)(h) | |
| 9 Petkovski v Galletti [1994] 1 VR 436 | |
| 10 [2007] VSCA 267 at [199] |
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