Grembka v MFCT Pty Ltd
[2014] VCC 1455
•4 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-14-01618
| DALE GREMBKA | Plaintiff |
| v | |
| MFCT PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 26 August 2014 | |
DATE OF JUDGMENT: | 4 September 2014 | |
CASE MAY BE CITED AS: | Grembka v MFCT Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1455 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC with Mr N Dunstan | Ryan Legal |
| For the Defendant | Mr W R Middleton QC with Ms B Myers | Hall & Wilcox |
HER HONOUR:
1 This 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 during the course of her employment with the defendant on or about 12 August 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of 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”.
9 I 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.
10 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
12 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged fifty-eight, having been born in Swan Hill in 1956. She was educated to Year 8. Thereafter, she worked as a cleaner and in the kitchen at Mildura Base Hospital, having time off at various stages to have a family and look after her mother.
14 The plaintiff commenced employment with the defendant upon a return to the workforce in 2002. It was seasonal work between April to December; however, sometimes the season started in May.
15 The plaintiff worked five to six days a week doing ten-hour shifts. Her job involved sorting and some packing of oranges, mandarins and avocados. There was a small amount of lifting and manoeuvring involved. The plaintiff was also a quality control officer for about two years.
16 Prior to the said date, the plaintiff occasionally visited a chiropractor to treat a sore back or neck. She was unsure how many times she had seen the chiropractor; however, attendances were infrequent and sporadic. She did not take any medication for any conditions prior to the said date.
17 The plaintiff attended Deakin Chiropractic Centre mainly for her neck but she also received treatment for a sore back.[3]
[3]Transcript (“T”) 9
18 The plaintiff saw Dr Murphy in March 2008 complaining of left-sided neck pain and she was prescribed Endone. He noted the plaintiff was taking Panadeine Forte at that time but did not give her a prescription for that medication.
19 On the said date, the plaintiff slipped and fell on a damp and slippery floor in the elevated area in the rot sort area (“the incident”). She fell, breaking two ribs, and also hurt her right hip.
20 The plaintiff was an inpatient at Mildura Base Hospital for three nights and then was under the care of her general practitioner, Dr Murphy, whom she had been seeing since 2006.
21 On the first two visits to her general practitioner in August 2011, the plaintiff was prescribed Panadeine Forte for her back. On later attendances, it was not prescribed, as the plaintiff was taking her husband’s medication.[4]
[4]T13
22 Whilst there were no entries relating to back complaints from November 2011 until April 2013, the plaintiff told Dr Murphy about her back when she attended for other matters. She did not ask him for Panadeine Forte, as she was taking her husband’s medication. She did not go to the doctor because of the hours she was working.[5]
[5]T15
23 Dr Murphy used to ask the plaintiff how her back was going and she told him it was much the same.[6] He told her that osteoarthritis would most certainly set in those parts of her body which were injured.[7]
[6]T19
[7]T20
24 Following the incident, the plaintiff had a few months off work. She then went back for two days and took some more time off. She returned in September on a graduated basis, working four hours a day, eventually returning five days a week and doing the majority of her pre-accident duties.
25 By the end of the 2011 season, the plaintiff was working five hours a day. She had tried an eight-hour day but it was too difficult. During that time, Dr Murphy was providing her with certificates to work reduced hours.
26 The plaintiff returned to work the following season. Work was hectic as usual and she had difficulty coping on a full-time basis. No one asked her how she was going from the day she went there.[8] There were no restrictions placed on her duties or hours.[9]
[8]T23
[9]T11
27 The plaintiff was then attending a chiropractor and also getting massage treatment with Neil Watkins on a fortnightly basis. The plaintiff attended a physiotherapist once in December 2012 but found her treatment of no benefit.[10]
[10]T20
28 Once the plaintiff finished the 2012 season with the defendant, she did not return. She found the work physically taxing and she had difficulty coping with the demands of sorting rotted fruit for ten hours a day.
29 The plaintiff agreed the defendant kept her job open for her until recent times and that the defendant was happy to have her back when they met in April 2013.
30 The plaintiff emailed the defendant later that month advising she would not be working that season but she was looking forward to returning to work in 2014. However, it was not her intention to do so. She had to keep the job open if her next job did not work out.
31 Whilst working for the defendant in 2012, the plaintiff used to cry for a couple of hours. The pain was so bad.[11] She needed to work as she was the family breadwinner.[12]
[11]T23
[12]T41
32 The plaintiff found employment with Chaffey Aged Care in December 2012 working 7.5 hours, five days a week. She was unable to work more than one day cleaning but was then given a job in the laundry that she could cope with.[13]
[13]T41
33 The plaintiff’s job involved laundry, including washing and drying in the machines, and she worked with someone else folding dried clothes. She could sit and stand when she needed to and there was no heavy lifting or need to bend or twist to any great degree. She considered it a very relaxed environment with no time pressures, which was not the case when working with the defendant.
34 The plaintiff did not think she had lost any wages, given her change of employment. However, she now has to work a full year, whereas previously she could have the early months off. The wages are comparable; however, she works for the whole year as a casual which is a significant difference.
35 Dr Murphy organised an x-ray of the plaintiff’s back in September 2013 because the plaintiff was still getting a lot of back pain. By that time, the plaintiff had attended Ryan Legal.[14]
[14]T40
36 The plaintiff deposed in November 2013 that she suffered from constant back pain which had never subsided or returned to a level of no pain. It varied in intensity or severity.
37 The plaintiff’s pain was generally worse at night after she had worked a full day. In order to get through the day, she took between four to six Panadol Osteo every day. She has also taken Panadeine Forte; however, they are very strong and she prefers to avoid them. She also took one tablet of the anti-depressant, Cipramil, in the morning, as well as blood pressure tablets.
38 The plaintiff’s sleep was disturbed by back pain. She had difficulty getting to sleep and took medication to help ease the pain. She often woke in some form of back pain and stiffness during the night. She did not like taking medication if she woke up in pain and she just tried to relax, change position and would usually fall asleep again.
39 In the morning after a hot shower, the plaintiff used Flexor Gel and Voltaren Gel on her back which assisted with pain management.
40 Lack of sleep made the plaintiff tired and irritable the next day and she tended to be quiet and less sociable. She already took too much medication as far as she was concerned. However, on occasion, bigger flare-ups of pain had resulted in her having to take up to eight Panadol Osteo.
41 The plaintiff attended a qualified masseuse, and her son also massaged her back. She received that sort of hands-on therapy on her back once or twice a week.
42 Initially, the plaintiff got home help for about six weeks and then she and her husband shared the home duties, including mopping, vacuuming and cleaning the bathroom. He assisted her as much as he could; however, he suffered from his own disabilities and his contribution was limited. The plaintiff was able to mop and vacuum slowly and take her time with the bathroom, as it was more difficult.
43 The plaintiff paid someone to mow the lawns, which was a task she used to do. Her son also mowed the lawn; however, he had obtained work in the mines and was unable to help. Washing clothes was not a problem, as the plaintiff had a front-loading washing machine.
44 Exercise had always been important to the plaintiff and prior to suffering injury, she swam three days a week at “Waves”. She would swim 130 x 25-metre laps. She tried to go back in 2013; however, swimming with a sore back was very difficult and she no longer did so. That upset her, as it was an activity she enjoyed for many years.
45 The plaintiff enjoyed playing pool and eight ball. That activity was now painful and she was restricted in her movements, especially bending over the pool table and playing the shot. That restriction had reduced her enjoyment and she no longer played as often, nor did she retain the same previous interest.
46 The plaintiff was able to sit comfortably for half-an-hour to an hour; however, she had to move, as her back pain increased significantly. Her job gave her the flexibility to sit and stand, and she was grateful for it.
47 The plaintiff’s contact with her grandchildren was generally restricted to talking, holding and cuddling without being able to do anything physical.
48 The plaintiff’s driving tolerance was okay and she could sit comfortably in the car without too much pain; however, longer driving increased her pain. She went shopping by herself; however, she had to generally ask for assistance from one of the supermarket employees to load heavier items, especially soft-drink cartons.
49 The plaintiff’s present job was permanent part time and suitable. It was a fill-in role and she was hopeful of securing permanent employment once the employee she was filling in for returned.
50 The plaintiff was uncertain whether she would be able to do a full cleaning role if that was the only work available, as it required more physical effort. The plaintiff needed to work, as she was the only at home working and she had significant commitments. She and her husband were then talking about selling their property to buy a small house to ease some of the burden.
51 The plaintiff was concerned about her ability to secure work in the event that she was not made permanent. Her employer was aware of her physical limitations and she worked within those despite the need to take medication and be careful about what she did.
52 Despite the fact the plaintiff considered herself a quiet, strong willed, independent person, the injury had taken its toll on her and she had had to learn to cope with the limitations and inability to do all the things that she was capable of doing comfortably. She was most concerned about her condition worsening as she got older and, more importantly, about being able to continue to work and contribute to securing her own future.
53 The plaintiff swore a further affidavit on 29 July 2014 in which she confirmed that there had been not much change in her back symptoms.
54 The plaintiff continues on a permanent part-time basis but working full-time hours. She is able to cope with the work because it is light and she can sit and stand as she wants. She is not required to do any heavy lifting or repetitive bending or twisting.
55 The plaintiff’s supervisor allows her to remain working only in the laundry, whereas the usual practice is to require workers in the laundry to work on a roster that requires them to do ordinary cleaning work within the aged-care centre. Normal work hours are 7.00am to 3.00pm with a morning tea break at 10.00am and lunch at 1.00pm. By the time the plaintiff gets to lunchtime, she is normally in such pain and discomfort in her back that she takes two Panadol Osteo to help her get through to the end of the day.
56 When the plaintiff gets home, she has a hot shower and then a massage, and rests for a couple of hours before she can face the rest of the day. She worries about how much longer she can continue with work because of her back pain but she is determined to continue working as long as she can.
57 The plaintiff continues to have constant daily back pain, the level of which varies. Her pain is aggravated by any prolonged sitting, standing or walking.
58 The plaintiff’s pain level is worse first thing in the morning when she gets out of bed and at the end of the day after she has been working. She has to stretch in the morning to reduce the pain and stiffness she gets from lying in bed at night and her back pain is worse in the colder weather.
59 The plaintiff continues to see Dr Murphy about once a month for her back and also other health problems. He has not suggested she undergo any further treatment. [15]
[15]T40
60 The plaintiff is currently taking on average six Panadol Osteo and four Panadeine Forte for back pain. She takes the Panadol Osteo during the day while at work and the Panadeine Forte at night to help her sleep.
61 The plaintiff continues to use gels on a regular basis to help alleviate her back pain. She normally applies them in the morning after she has had a shower to help reduce her back pain.
62 The plaintiff continues to pay for massages every two to three weeks which alleviate her back pain. She is also continuing to have regular massages from her son. She has been using a TENS machine on her back about three times a week for about an hour at a time.
63 The plaintiff stopped going to the chiropractor because it was not helping. She used to end up getting very sore after the treatment.[16]
[16]T39
64 The plaintiff continues to have problems sleeping because of her back pain.
65 The plaintiff struggles to do household chores such as vacuuming and cleaning the floors and the bathroom and kitchen because of her back pain, and her husband now does those chores, as she finds them too difficult with her back. The plaintiff continues to pay someone to mow the lawns.
66 The plaintiff has given up lap swimming altogether because of her back injury. She still goes to the pool but only walks in the water, as recommended by her doctor.
67 The plaintiff used to swim laps three or four days a weeks in the off season from work. As the weather got warmer, she went swimming on Sunday mornings.
68 The plaintiff has walked in the water once or twice but did not find it as enjoyable as swimming. She has tried to swim a couple of times but when she pulls her arm over, it hurts her lower back.[17] She would still be swimming now had she not hurt her back. Before the incident, she started to become a “real fitness fanatic”. Since the incident, she cannot walk the amount she used to and she just cannot “do the swims”.[18]
[17]T23
[18]T43
69 The plaintiff deposed that she continues to play pool despite her back pain. When she is playing pool she uses a rest cue as often as possible to avoid having to stretch or bend too much.
70 The plaintiff uses a rest cue most of the time as she can no longer stretch over the table as she was able to previously when she could practically “turn [herself] inside out”.[19]
[19]T34
71 The plaintiff was cross-examined at length about her pool playing. She agreed she participated in tournaments that ran over a weekend at locations such as Broken Hill, the Barossa and Geelong. She also plays in a club competition on Tuesday nights. Sometimes she plays two out of three games and then goes home. She had a lot of time off playing pool in 2012 and 2013.[20]
[20]T24
72 The plaintiff won a competition which was held in Ballarat last year, winning thirteen of the sixteen games played.[21]
[21]T25
73 The plaintiff is not required to bend over the table all the time when playing, but usually does so. She can adjust her body and stand upright. She agreed she was shown flexed leaning over the table for a photograph.[22] She captained the “Froth Blowers” to a minor premiership last year, although she did not attend every game.[23]
[22]T26
[23]T29
74 The plaintiff has played pool for about twenty-five years. She used to play three to four times a week but now plays once a week for an A-Grade team, “Tenpin Outlaws”. She plays throughout the year. Her involvement in tournaments depends on whether or not she is selected. She has been selected for three or four tournaments in the last year. Had she not been injured, the plaintiff would probably be playing two to three times per week.[24]
[24]T36
75 The plaintiff does play in every game, mainly because of back pain. She usually knows about back pain after having played, but she continues to play as “it is hard to break away from it” and she needs an outing, as she does not have much else.[25]
[25]T34
76 The plaintiff does not play with the amount of confidence she used to and does not really get as much enjoyment out of playing. It is not the same. She can no longer do the breaks and has to get other team members to do them.[26]
[26]T37
77 The plaintiff continues to have difficulty playing with her grandchildren. The situation still upsets her greatly and she cannot do so as much as she would like because of her back pain.
78 The plaintiff’s back pain continues to impact on her driving. She finds driving short distances okay but if she has to drive for longer than an hour she will need to stop and take rest breaks, as was the case when travelling to various pool tournaments.[27] On one occasion, the plaintiff had to stay away an extra night because of her back pain.[28]
[27]T35
[28]T37
79 Eighteen minutes of surveillance film was shown of the plaintiff’s activities on 16 February 2014. The plaintiff agreed she was shown going about various activities of a social nature, including attending a market. She would have been in discomfort during the time filmed.[29]
[29]T31
Lay evidence
80 The plaintiff’s husband, Peter, swore an affidavit on 29 July 2014 confirming a significant change in the plaintiff and her enjoyment of life since the incident.
81 The plaintiff has had great difficulty doing household cleaning and ironing and she no longer mows or carries out any gardening involving lifting or digging.
82 The plaintiff now has a regime with medication, massage and showers. He often prepares something for dinner and the plaintiff goes to bed at about 7.45pm.
83 Since her injury, the plaintiff is a very restless sleeper and he often hears her complaining of back pain and getting up during the night to take some medication.
84 Since the injury, the plaintiff has become increasingly depressed and far more short-tempered than she was before. He can see how much it upsets her that she is restricted with the grandchildren.
85 Since he cannot work due to a back injury, the plaintiff has taken on the role as the main earner in the house and he sees how much she struggles to keep working with her injury and she has to rest after work and follow her treatment regime. He has seen how much the plaintiff pushes herself to keep going and he knows that she worries about how long she can continue at work with her back the way it is.
The Plaintiff’s medical evidence
86 Dr Murphy referred the plaintiff to Dr Terry Cook in November 2011 and Mrs Jennifer Cooke on the same date.
87 Dr Murphy reported in October 2013 that the plaintiff had required oxycodone (Endone) for her pain.
88 Dr Murphy gave a history of the plaintiff’s attendances, first seeing Dr Louey in relation to the incident and first seeing him on 24 August 2011.
89 Dr Murphy reported the plaintiff’s x-rays on admission did not show any fractures; however, he ordered a bone scan that was performed on 31 August 2011. That showed three focal hot spots at the thoracolumbar junction. It was thought those hot spots involved the eleventh and twelfth rib and the transverse process of the L1 spine. He thought these were most likely three separate fractures of the projections from the vertebrae as a result from the incident.
90 Dr Murphy’s impression was the plaintiff suffered from fractures of the bony portion of the spine in the lower thorax. These would normally heal, in his view, with minimal long-term sequelae and the injuries did not affect the spinal canal.
91 In his further report of 20 August 2014, Dr Murphy repeated most of his earlier report. He added the plaintiff continued to suffer pain for some months after the incident, although the pain gradually eased and she was able to return to work in November 2011.
92 Dr Murphy noted that when seen recently, the plaintiff continued to complain of pain in her back. She had had a number of comorbidities which did not appear relevant to this case. Dr Murphy noted normally these sorts of fractures will improve with no long-term sequelae.
Medico-legal evidence
93 QBE organised for the plaintiff to be examined by Associate Professor Goldwasser, orthopaedic surgeon, for the purposes of an AMA assessment in June 2013.
94 The plaintiff told him that she continued to be troubled with low back pain in the lumbar area and to the right of the midline, radiating to the right buttock and back of the right hip. She told Professor Goldwasser that she took Panadeine Forte when her pain was troublesome and she averaged about four tablets a week. She also applied gel. She was self-funding massage and seeing a chiropractor each month, which gave her relief for a couple of days, then her back reverted to normal. She saw her general practitioner each two months on average, mainly for prescriptions.
95 The plaintiff told Professor Goldwasser she enjoyed playing pool but had to give up her hobby of swimming because it upset her back.
96 The plaintiff visited a chiropractor occasionally in the past, mainly for her neck. She had not seen the chiropractor for over six months before the incident.
97 On examination, the plaintiff had a normal gait and was able to walk on her toes and on her heels without difficulty. There was no deformity in her back but there was a moderate degree of stiffness and there was some tenderness.
98 Professor Goldwasser had available the 2011 x‑ray and the bone scan of August 2011.
99 Professor Goldwasser noted that the injuries probably included fractures of the two lower right ribs, a soft tissue injury to the lumbar spine and to the right hip, and extensive bruising extending from the lower back to the back of the thigh.
100 Professor Goldwasser thought the prognosis for the plaintiff’s condition was now likely to remain much the same in the foreseeable future and it had largely stabilised. He noted the plaintiff continued with residual symptoms, mainly pain in her lower back and some extension to the right buttock area, which limited certain activities, including swimming, and she had discomfort with frequent repetitive activities which were needed in her job. She could cope with this but would notice soreness and would need to take medication for pain relief.
101 The plaintiff was examined for medico-legal purposes by Mr O’Brien, orthopaedic surgeon, in February 2014.
102 The plaintiff then described constant pain, predominantly related to the right buttock, but also some pain associated with the right lower limbs. She described the severity of that pain as six out of ten.
103 The plaintiff told Mr O’Brien she was quite capable of all the normal activities of daily living. She did most of the housework, although she had some assistance with heavy domestic duties. She indicated she was able to drive a car and do her shopping and she was working 7.5 hours, five days a week.
104 On examination, physical signs currently were subjective, with some restriction of lumbar movement reproducing buttock pain, in addition to some local tenderness. There was no evidence to suggest neurogenic pain. Investigations were reported as demonstrating some inflammatory process on the bone scan in relationship to the posterior articulation of the lower ribs. There was, however, no clearly defined specific bony injury identified.
105 Mr O’Brien considered the plaintiff presented with chronic, non-specific buttock and loin pain. He could not define, on the available clinical evidence, any more specific pathology to explain her chronic pain.
106 Mr O’Brien thought the clinical condition was certainly stable. There was certainly no ongoing active treatment. Pain now was addressed conservatively with analgesic medication, which had been ongoing, and he was sure would continue. In his opinion, there was no indication for any further investigations or any form of invasive treatment.
107 Mr O’Brien would remain guarded in relationship to the prognosis, as given the rather prolonged nature of the plaintiff’s symptoms, he thought pain was likely to persist.
108 Mr O’Brien noted the plaintiff in fact described ongoing disability. He noted that she returned to her normal duties, resulting in a definite aggravation of symptoms causing a change in her employment with less physically stressful duties. Thus, he would conclude she was not physically capable of undertaking unrestricted physical duties.
109 Mr O’Brien thought the plaintiff remained capable of undertaking modified duties where she was able to change her position regularly, and did not involve heavy physical duties or extended work hours.
110 Mr O’Brien also considered the plaintiff appeared to be mildly limited in her general, social, domestic and recreational activities which he would suggest was likely to continue.
111 Mr O’Brien noted the bone scan of the whole body of 31 August 2011 showed three focal hotspots identified to the right of the midline at the lumbosacral junction level. It was suggested that this represented the base of the eleventh and twelfth ribs in their posterior articulation. It was reported it was potentially representative of some bony injury, but he had no information that this potential bony injury was supported with any x-ray changes.
The Defendant’s lay evidence
112 Ian Whitfield, payroll supervisor of the defendant, swore an affidavit on 8 July 2014.
113 The plaintiff was employed as a casual process worker with the defendant, commencing work on 8 May 2002, and worked on a seasonal basis, with the season running from April to late November/early December.
114 The plaintiff was working in an area known as “rot sorting” when she suffered her alleged injury. A standard shift at the defendant was for ten hours a day when busy and also six days a week when really busy.
115 When the plaintiff returned to work during the 2012 fruit season, she went to the rot sorting department and during that time, worked without any obvious impairment or complaints as far as Mr Whitfield had been able to establish.
116 The plaintiff only claimed two medical accounts of 9 December 2011 and 23 March 2012.
117 The defendant did not have any medical certificates for the plaintiff for the 2012 season and, to his knowledge, she was not completing modified or restricted duties during that time.
118 There were no records of any return to work plans being devised for the plaintiff.
119 Mr Whitfield first became involved with the plaintiff when she submitted her impairment benefit claim before the 2013 season. Ryan Legal was acting on her behalf and notified the defendant about the claim on 25 March 2013.
120 The defendant met with the plaintiff prior to the start of the 2013 season on 12 April 2013 and the meeting was held to ensure she was physically capable of working in the upcoming season and to inform her that there were alternative duties if required.
121 At that meeting, the plaintiff attended, as well as Mr Whitfield and two colleagues. The plaintiff was told if she was going to return to work she needed to provide a fitness for work certificate, as well as detail any medical restrictions she may have which would require her to work modified duties.
122 The plaintiff indicated she wanted to take a season off work to recover from the injury but appeared quite vague about her intentions. She was informed she could take long service leave. In the end, nothing was decided during the 12 April 2013 meeting.
123 On 24 April 2013, the plaintiff forwarded Mr Whitfield an email saying she was unavailable to work during 2013 and was looking forward to returning to work in 2014. He responded, saying her request had been approved and it would be treated as leave without pay so it would not impact on her continuity of service towards her long service leave.
124 Following the receipt of her written resignation stating she was resigning due to injuries received at work, a meeting was organised for the plaintiff on 15 August 2013. The day before, she advised she would not be attending the interview.
125 On 15 August 2013, Mr Whitfield tried to reschedule the meeting for 16 August 2013 and informed the plaintiff he was not prepared to process her resignation until they had had the chance to discuss it with her in more depth. The plaintiff was informed she was welcome to return to work subject to supplying a fitness for work certificate and that the defendant would provide modified duties for her if that was deemed appropriate. She was also informed that the defendant would pay a minimum of three hours’ pay for the meeting and provide her with a copy of the minutes of the meeting and that they would provide her with a separation certificate if the resignation stood.
126 In reply, the plaintiff advised she would not be attending the meeting and her resignation stood. The resignation was then accepted, because the defendant was unsure if there was anything else they could do.
127 On 16 August 2013, Mr Whitfield replied to the plaintiff, again confirming the defendant had accepted her resignation and that her entitlement to long service leave would be processed and paid accordingly.
The Defendant’s medical evidence
128 Notes from Deakin Chiropractic set out the plaintiff first attended in 1993 and last attended in August 2013 after her condition was worse after the last treatment.
129 The plaintiff first attended after the incident on 16 March 2012 and attended thereafter about nine times. Prior to that, she attended twice in 1993, twice in 1995, twice in 2000, once in 2003, five times in 2006, once in July 2007, once in March 2008 and a couple of times in 2010.
Notes of Deakin Medical Centre – Dr Murphy
130 It was noted on 5 March 2008, the plaintiff attended with annoying pain in the left side of her neck and that she had been helped by Panadeine Forte. Endone was prescribed. There was no mention of Panadeine Forte being prescribed on that occasion.
131 Dr Louey saw the plaintiff on 18 August 2011, when she gave a history of falling on metal stairs. Since then, back pains and buttock pains, and the x‑rays showed no abnormalities. On examination, there was bruising of the right lower back area, tender to touch. Panadeine Forte was prescribed. There was a further visit and prescription of Panadeine Forte on 24 August 2011 and a request for a bone scan.
132 From 17 November 2011 to April 2013, there was no mention of any investigations or complaint of pain related to the incident, with the plaintiff attending for a number of other matters.
133 On 17 August 2012, current medications were listed as Ibilex. On 18 September 2013, Cipramil and Advantan. On 20 June 2014, Cipramil, Norspan, Panadeine Forte, Panadol Osteo and Somac.
134 On 5 September 2013, a lumbar spine x-ray was organised and chronic pains in the spine noted.
135 On 18 September 2013, it was noted that a letter was written to Ryan Legal. Subsequent thereto, the plaintiff attended on 13 October 2013, 28 January and 10 April 2014 for back pain. On 26 May 2014, when Mobic and Panadeine Forte were prescribed, and a prescription given for Norspan.
Certificates
136 Dr Murphy certified the plaintiff unfit for all duties until September 2011 and, for the remainder of that year, certified her fit for modified duties.
Investigations
137 There was a lumbosacral x‑ray on 3 January 2014.
138 It was reported there was moderate degenerative facet joint arthropathy with sclerosis at L3-S1 level. There was no significant degenerative change in the vertebral bodies and no acute bony lesion. The height of the vertebral bodies and disc spaces was maintained. Alignment was normal.
139 In the Sunraysia Daily on 23 April 2013, it was reported that “Froth Blowers” had been defeated by “Team Power” in the Sunraysia Super 16s eight ball competition.
140 Led by the plaintiff, her team, who finished the early rounds minor premiers, battled hard but were no match for the more consistent “Power”.
141 There were various Facebook entries that contained photographs of the plaintiff playing eight ball.
142 Results of a competition held in Ballarat in November 2013 indicated the plaintiff was the top ranked player, having won thirteen out of sixteen matches.
Overview
143 It is not disputed the plaintiff suffered a compensable injury in the incident.
144 The limited orthopaedic opinion is that the plaintiff suffered a soft tissue injury to the lumbar spine and she presents with chronic non-specific buttock and loin pain.
145 Dr Murphy is alone in his view that the plaintiff suffered from fractures of the bony portion of the spine in the lower thorax. In any event, he thought the fractures would normally heal with minimal long-term sequelae.
146 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments, medical expenses and also a claim pursuant to s98(C).
147 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[30] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[30][2006] VSCA 171
148 There is no suggestion of any previous back complaint of any significance.
149 There is no medical opinion that the plaintiff’s back complaint lacks a substantial organic basis, although it was submitted there was not much to be found on examination.[31]
[31]T49
150 Mr O’Brien’s findings were subjective and he thought there was no clearly defined specific bony injury. Professor Goldwasser found little on examination.[32]
[32]T50
Credit
151 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[33]
“… 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.”
[33](Supra) at paragraph [12]
152 The plaintiff’s credit was attacked by the defendant’s Counsel on the basis of her non disclosure in her two affidavits of the extent of her eight ball involvement, not telling Mr O’Brien at all about it and telling Professor Goldwasser simply that she enjoyed playing pool.
153 It was submitted, in those circumstances, re-examination after the plaintiff had seen the Facebook entries should not be permitted to make the plaintiff’s case when these matters were not referred to in her affidavit.[34]
[34]T46
154 In response, Counsel for the plaintiff pointed out that the plaintiff had mentioned eight ball in her affidavits. As she could not draft the documents, this could not be a credit point against her.[35]
[35]T54
155 In my view, this issue is relevant in two ways: Firstly, I do consider the plaintiff was less than frank about her level of pool playing. In those circumstances, I do not accept her evidence that she is significantly limited by her injury in the pursuit of this activity and have some concern generally about her evidence as a whole.
156 However, I do note that there was nothing in the surveillance film of any significance and no medical examiner considered the plaintiff was exaggerating her complaints or found inconsistencies on examination.
Pain
157 In Haden, Maxwell P stated that the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).[36]
[36]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [11]
158 I am satisfied that since the incident, the plaintiff has suffered lower back pain of varying intensity, radiating in her buttocks, particularly the right.
159 However, as Ross AJA stated in Kelso, the complaint of pain, even repeated many times, does not establish the veracity of a complaint.”[37]
[37]Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraph [46]
160 Other factors such as what the plaintiff has done about her pain are a relevant consideration.[38]
[38]See Maxwell P in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [11]
161 The plaintiff has had little in the way of treatment for pain. After a few days in hospital immediately after the incident, besides attendances at the general practitioner and prescription of Panadeine Forte on two attendances within a month of the incident, there was no prescription of painkilling medication until recent times.[39]
[39]T51
162 From November 2011 until April 2013, whilst attending her doctor for other matters, the plaintiff made no mention of her back complaint, nor was any medication prescribed – although she says she used her husband’s tablets, as was the case in March 2008.
163 Whilst the plaintiff’s husband was not cross-examined,[40] he did make mention in his affidavit of providing the plaintiff with his Panadeine Forte.
[40]T53
164 The plaintiff received chiropractic treatment at Deakin Chiropractic on nine occasions following the incident, ceasing treatment in August 2013 as treatment made her condition worse. She had attended that practise on an infrequent basis prior to the incident for treatment of a sore neck and back.[41] The plaintiff attended physiotherapy on only one occasion in December 2012, as it did not help her.
[41]T48
165 Whilst Counsel for the plaintiff submitted there was no need for Dr Murphy to note ongoing back complaints, as she told him her condition never changed, mention was made to him of back-related problems on recent visits. He did not note however, that there was any deterioration or aggravation, simply noting “transverse fracture T12” on two occasions and low back pain and facet joint dysfunction.[42]
[42]T52
166 The plaintiff’s only other treatment is monthly massage which she self-funds,[43] the application of gels and the use of a TENS machine.
[43]T52
167 Dr Murphy has not referred the plaintiff to any specialist. He has suggested that walking in the water would be beneficial for her but she has attempted doing so on only two occasions.
168 Whilst Dr Murphy does not provide much detail in his two reports, I accept that he does not question the genuineness of the plaintiff’s complaints.
169 However, I do not accept the submission by Counsel for the plaintiff that the plaintiff has very significant ongoing pain which requires regular treatment.[44]
[44]T56
170 I accept, as a result of the back condition, the plaintiff has some restriction in her ability to bend, lift and twist. She has difficulties with housework and playing freely with her grandchildren and driving for extended distances. She also has some problems sleeping.
171 In terms of other activities, I accept the plaintiff now has difficulty swimming and no longer swims laps for exercise, as was the case prior to injury.
172 However, the plaintiff’s problems in relation to the above activities cannot be fairly described as being “more than significant or marked and as being at least very considerable”.
173 Whilst the plaintiff claims her involvement in eight ball has been significantly affected by her injury, she continues to play A-Grade on a regular basis. She competes in tournaments over weekends at various locations and has been selected for a number of competitions.
174 At the Ballarat tournament held in November last year, the plaintiff finished first, having thirteen of sixteen games played.
175 There is no mention in the plaintiff’s husband’s affidavit of the plaintiff playing pool, let alone any significant difficulties playing because of her back condition.
176 The plaintiff was able to return to work, albeit on reduced hours at the end of the 2011 season. However, she was able to work her normal hours on normal duties through 2012, without the need for any modification or restriction in duties or hours.
177 The plaintiff’s job was held open for her by the defendant and she indicated to the defendant in April 2013 that she intended to return there the following year.
178 Mr Whitfield confirmed these matters in his affidavit and also confirmed that the plaintiff worked with no restrictions or obvious discomfort during the 2012 year.
179 The plaintiff continues to work, having obtained a full-time job at the Chaffey Aged Care facility, where she does light laundry, working five or six days a week, up to ten-hour shifts.
180 There is no medical restriction on the plaintiff’s present duties, nor has there been any certification from Dr Murphy in this regard since late 2011. As he reported, the plaintiff’s pain gradually eased and she was able to return to work at that time.
181 Whilst the plaintiff has experienced some pain and discomfort following her injury, she continues to work full time and play eight ball regularly and successfully, an activity which requires a degree of flexion, without the need for significant medical treatment.[45]
[45]See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
182 Taking into account all the evidence, I am not satisfied the plaintiff has a serious injury.
183 Accordingly, the plaintiff’s application is dismissed.
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