Guldogan v Victorian WorkCover Authority
[2019] VCC 1433
•6 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-00880
| SEVINC GULDOGAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 August 2019 | |
DATE OF JUDGMENT: | 6 September 2019 | |
CASE MAY BE CITED AS: | Guldogan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1433 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – paragraph (a) of the definition of “serious injury” – pain and suffering only – range case
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009]
Judgment: Leave is granted to the plaintiff to bring common law proceedings in respect of pain and suffering damages for the injury to her lower back arising out of or in the course of her employment on or about 23 January 2015.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick | Zaparas Lawyers |
| For the Defendant | Mr N Dunstan | Wisewould Mahoney |
HIS HONOUR:
1 By way of Originating Motion dated 27 February 2019, Sevinc Guldogan (“the plaintiff”) seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring common law proceedings to recover damages for an injury to her lower back (“the injury”) suffered by her during the course of her employment with Avanade Australia Pty Ltd (“the employer”) on 23 January 2015.
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering” damages only within the meaning of s325(1) of the Act.
3 The plaintiff was the only witness to give evidence and be cross-examined. Both parties tendered a variety of documents.[1]
[1]Refer to exhibit “A”. See exhibit list attached to this document
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.[2]
[2]See s335(5) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act, which reads:
“serious injury means—
(a) permanent serious impairment or loss of a body function; … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the lower back of the plaintiff.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)The “injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the employer on or after 20 October 1999 and for the purposes of the Act on or after 1 July 2014;[3]
(b)The “injury” and the resulting impairment under paragraph (a) must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)The “consequences” to the plaintiff of the injury in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of function is:
“… when judged by comparison with other cases in the range of possible impairments … as the case may be … [can be], fairly described as being more than significant or marked, and as being at least very considerable.”[5]
This is sometimes referred to as the “narrative test”.
[3]See s1 of the Act
[4]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[5]See s335(2)(b) and s335(2)(c) the Act
8 In determining the application, the Court:
(a)Must not take into account psychological or psychiatric consequences of the “injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
(b)Must make the assessment of “serious injury” at the time the application is heard;[7]
(c)Must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[8]
(d)Notes that the question of whether “an injury” satisfies the narrative test is largely a question of the impression or value judgement.[9]
[6]See s325(2)(h) of the Act
[7]See s325(2)(j) of the Act
[8]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
[9]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
9 When queried as to what were the issues in the proceeding, counsel for the defendant advised the Court that the matter was “simply a range case”.[10] In particular, counsel for the defendant confirmed that there was no issue that there was a compensable back injury and that such injury gave rise to permanent impairment with some consequences. In particular, it was submitted that to the extent that there were consequences, such consequences did not satisfy the narrative test.[11]
[10]Transcript (“T”), Lines (“L”) 11
[11]See generally T4, L12-22
The evidence of the Plaintiff
10 The plaintiff relies on her three affidavits sworn, respectively, on 24 September 2018, 24 June 2019 and 13 August 2019. During the course of her evidence-in-chief, she stated that she had looked at those affidavits in the last twenty-four hours and the contents of such affidavits were true and correct,[12] save for:
[12]T8, L8-10
(a)Paragraph 52 of the affidavit sworn on 24 September 2018 which makes reference to the plaintiff no longer doing the vacuuming. In relation to that, the plaintiff gave the following evidence:
“… ‘"Thus I no longer do the vacuuming because of the pulling and pushing’ – - that is basically saying I don’t do any vacuuming, but I do, like, if there is a small spill in the kitchen or so, I do vacuum with the handheld vacuum machine.”
HIS HONOUR:
Q:“You have - sorry, from the time of the injury until now that’s been the case, or- - -?‑‑‑
A:At the time of the injury I wasn’t doing any vacuuming at all but since then - - -
Q:Over time? ‑‑‑
A:- - - over time, I’ve been doing the little spills here and there. But I do get a cleaner in.
Q:I see. Whereas before, you didn’t have a cleaner? ‑‑‑
A:No.
Q:That’s correct? ‑‑‑
A:That’s correct.”[13]
(b)Paragraph 4 of the affidavit sworn on 13 August 2019, wherein the plaintiff deposes:
“I had been looking in the past for a part time permanent role. I wasn’t able to find one and hence have been working fulltime from 2018 onwards. I had enjoyed the prospect before the back injury, of progressing beyond the level of a manager (where I was) to a group manager and subsequently to a director’s position.”[14]
[13]T8, L31-T9, L13
[14]See exhibit 1, third affidavit of plaintiff, sworn 13 August 2019 at PCB 103
11 The plaintiff informed the Court that:
“Well, I’ve been with Abenard (sic) for 11 years, and my job satisfaction then was enormous. I was going up the career chain, but now I’m doing the contractor role which for contractors, there are no such thing as career growth. They don’t provide those to those contractors. You are basically employed for a project, and then you are let go after a project is completed. So basically, my career growth is now - been taken out of my hands.”[15]
[15]T10, L7-14
12 When queried by the Court as to why the plaintiff chose to take contracted roles now, rather than seeking permanent-type employment, she stated:
“Sure. Well, the permanent roles - there is a vigorous - usually there is a vigorous medical check, and I find it pretty humiliating to go through such a process is one of the drawbacks of me applying for a permanent role and in the past I did work for part-time permanent roles as well which I couldn’t find and in the meantime I’m just applying for contractor roles where I can.”[16]
[16]T10, L22-29
13 By way of her first affidavit, the plaintiff gave evidence that she is a forty-two-year-old (born December 1976) married woman with twin boys, aged nine. She was raised in Flemington, and after completing Year 12, attended university, graduating with a Bachelor of Engineering (Computer Systems) in 1998.
14 After her graduation, the plaintiff initially worked as a software engineer and later, as a business analyst/project manager. In August 2006, she commenced work with the employer, which operates as an IT consultancy. She was initially employed as a technical consultant and then became a business analyst/project manager.
15 When the plaintiff commenced with the employer, she “by and large” enjoyed good health and was able to work without any restriction, and engaged in a range of activities outside work. She did suffer from some “mild lower back, neck and shoulder pain” on occasion, but never needed any treatment, just the occasional massage. She also suffered postnatal depression for a short period, which required treatment.
16 On 23 January 2015, the plaintiff had flown to Adelaide to make a presentation at a client’s premises. Just before the presentation, she bent over and picked up a bag in order to retrieve her laptop, and in doing so, heard a click, and immediately felt a sharp pain in her lower back, which shot into her hip and down her left leg.
17 The bag that the plaintiff picked up was a large carry-on case – a cabin-sized bag with wheels – containing the laptop and a large number of documents, along with other materials.
18 The back pain was severe initially, but reduced slightly and the plaintiff was able to give the presentation, albeit in pain. The pain persisted, and she was in significant discomfort on the flight home, with the pain worsening over the following days. She subsequently reported “the injury” and lodged a WorkCover claim and then later, again, a claim for permanent impairment, all of which were accepted.
19 The plaintiff initially sought treatment from a myotherapist (whom she had attended in the past). She was obtaining no benefit from such treatment and then consulted a general practitioner, Dr Hakem Baglar, who is situated at the Clinique Mediterranean in Lalor. In her first affidavit, she deposes that she initially saw Dr Baglar on 3 February 2015 and has continued “to see him on a more or less regular basis since that time”.[17]
[17]Exhibit 1 at PCB 5
20 Dr Baglar referred the plaintiff for extensive physiotherapy treatment from Mr Abhi Kalia, and also referred her to a psychologist, Ms D Oksu, at around the time that her employment was terminated, which she found very distressing.
21 Dr Baglar also has prescribed the plaintiff Panadeine Forte, Nurofen Plus, the occasional Voltaren, and she also takes Temazepam to help her sleep.
22 The plaintiff notes that she has been informed that Dr Baglar, in his reports, records that she had a “short rest” after the injury. She does not recall having any time off and remained at work, but on modified duties, with restrictions on lifting and like activities. He notes that initially, she was able to cope at work, but regular travel, in particular, seemed to make her symptoms worse and ultimately, Dr Baglar certified her to have “no interstate travel”, which seemed to help, as without the travel there was far less lifting of any material. Ultimately, her hours were reduced to three days per week by Dr Baglar, although in March 2017, the plaintiff increased her hours to four days a week, including one day working from home.
23 Notwithstanding her increase in hours, the employer terminated the plaintiff’s employment in July 2017, following a request by the human resources manager of the employer to return to her pre-injury duties. At that time, she discussed the matter with Dr Baglar and considered her options carefully, well knowing that her job was at stake. She notes that in the end she was not well enough to return to her pre-injury duties at that time. The employer offered her a package, which she agreed to take.
24 In February 2018, the plaintiff was offered a job as a business analyst on a short-term contract basis, which was accepted, and continued until about June 2018. Since July 2018, she has been working as a business analyst in a full-time contract role with DLA Consulting Australia Pty Ltd (“DLA”), although she struggles to cope with work on a full-time basis. Since starting that role, she has had to take her regular days off and does not believe she could perform that sort of work as it involved lots of travel.
25 In her first affidavit, the plaintiff describes her pain and consequences in the following way:
·She continues to suffer chronic back pain, together with left leg pain. Most of the time the pain in her back is a dull ache, and although painful, is manageable. However, if she overdoes it, she experiences sharp pain and the pain can be excruciating, say 8 out of 10.
·She has pain in her left leg, best described as a dull ache too, together with some numbness and pins and needles.
·She takes care to avoid activities, such as sitting and standing for long periods, or bending, lifting or twisting, all of which aggravates her condition. She estimates that she would suffer pain she would describe as “excruciating” three or more times a week.
·Whenever possible, she tries to change her position, which appears to be the only thing that seems to help her (medication aside).
·She continues to have some neck and shoulder pain from time to time, but her back pain is “by far the worst of my problems”.
·Her sleep is “significantly disrupted”, and she has difficulty getting to sleep and wakes in pain a number of times per night. As a result, she invariably wakes feeling unrefreshed and tired during the day.
·As a consequence of the limitations imposed by her back condition, she is unable to engage in, or has a real difficulty, with a range of activities:
– although she is performing full-time hours, she is not sure whether she can continue on that basis.
– she has had to give up singing in a local Turkish choir, which was her main hobby. Although a social choir, they would practice every week for two hours and only perform once or twice per year, by invitation, at Turkish cultural events. Although she tried to keep going after the injury, it was getting too difficult, as being on her feet for a long period proved too much, and she had to leave the choir.
– she has some difficulty with daily activities, such as showering and dressing, and while by and large she can cope, she has to be careful not to aggravate her condition.
– she has some real difficulty doing things around the house. Before her injury, she did the bulk of her household chores, but now she avoids heavy chores because of the risk of aggravating her condition. Reference has already been made to the limitation on her vacuuming.
– she has difficulty performing even moderately heavy duties such as the dishes, because of the stooping, which she finds quite painful.
– while she can do certain things, especially if it is a one off, or only for a limited period – for example cooking – she now does pay a cleaner to clean the house once per fortnight.
– she has some difficulty caring for her children and, again, by and large, she continues to manage, as there is no-one else to do it. She finds bathing them and dressing them very “taxing on her back”, because of the lifting, bending and twisting.
– she is no longer able to do much, if anything, in the garden. She notes that they have a large garden, and before her injury she would spend one to two hours per week working the garden, which she enjoyed very much as she loved being outdoors. She now finds it difficult to do anything meaningful.
26 By way of her second affidavit, the plaintiff deposes that she continues to see Dr Baglar every three months or so and continues to take medication – Nurofen Plus every second day, Panadeine Forte two to three times a week, when the pain is bad, and the very occasional Voltaren. She also takes Temaze to help her sleep, along with Pariet, Pramin and Ranitidine for her stomach, as she has significant trouble with her stomach because of the medication that she takes for her back. In this respect, she underwent a gastroscopy, due to stomach issues, in February 2018.
27 The plaintiff also takes Prozac as a result of her distress by the effect of the injury on her ability to work, and her life generally, and also a naturopathic preparation to reduce inflammation.
28 At the time of the swearing of that affidavit, the plaintiff notes that she had not had any physiotherapy “in more recent times” and is planning to see her physiotherapist again, as she is worse without it.
29 The plaintiff continues to suffer chronic back pain, together with leg pain, and her condition is largely as that set out in her first affidavit, save that she may be a “little worse”.
30 The plaintiff’s current job role is very sedentary and she spends a lot of time in front of a computer screen and the sitting aggravates her condition. The attacks of back pain described in her first affidavit tend to last longer – after half a day – so do the pins and needles in her left leg.
31 The plaintiff’s sleep continues to be disrupted, although she believes her sleep briefly improved for a period, perhaps because of medication as, again, she is not now sleeping well and constantly wakes during the night.
32 The plaintiff continues to be unable to perform a number of things, or has difficulty in doing them, as described in her first affidavit. Although continuing to work full time, she has difficulty, and has to take time off from work from time to time because of back pain. She notes that she took her current role, in part, because of the proximity to her home and the reduced travel time that helped her cope with full-time hours. Also, she is able to work from home occasionally, depending on the project she is working on.
33 The plaintiff notes that the injury to her back has had an adverse effect on her career in that she can no longer perform roles that require much, if any, travel and she is concerned about committing to a permanent full-time position because of the difficulties that she has working full time and needing something close to home.
34 The plaintiff also confirms that she has not been able to return to singing in the Turkish choir and also notes that the injury to her back stops her bike riding. She notes that although never much of a bike rider, it was something that she enjoyed doing with her family – say once or twice a month – and which she is now unable to perform.
35 In her last affidavit, sworn on 13 August 2019, the plaintiff deposes that she wished to clarify the effect of her back injury on her career employment and job satisfaction. She states:
“I had been looking in the past for a part time permanent role. I wasn’t able to find one and hence have been working fulltime from 2018 onwards. I had enjoyed the prospect before the back injury, of progressing beyond the level of a manager (where I was) to a group manager and subsequently to a director’s position.
Now working in a contractor’s role, I have no realistic prospects for career growth. To get the growth in my industry you need to be able to put in extra hours and go above and beyond. The main reason I can’t do that because it is too taxing on my back.
As a result, my learning and development opportunities are very restricted in the workplace. I usually need more sick leave than a permanent position allows. As a contractor especially at Melbourne Airport, I can do my 9am-5pm without being pressed to do longer hours. I can take a day off more easily than a permanent (although it does impact and is to be avoided).”[18]
[18]See exhibit 1 at page 103 PCB
The evidence of the Plaintiff’s husband
36 The plaintiff relies on an affidavit from her husband, Mustafa Guldogan, sworn on 2 July 2019.[19] In that affidavit, the deponent confirms that he is the husband of the complainant and that he has read the two affidavits sworn by his wife respectively on 24 September 2018 and 24 June 2019 (his wife had yet to complete her third affidavit).
[19]See exhibit 1 at pages 16-18 PCB
37 Mr Guldogan notes that he and the plaintiff had been married for seventeen years and he sees her on a daily basis, and has had a “very good opportunity” to observe the effects of the back injury on his wife compared to her situation before the injury. He deposes that his “observations are entirely consistent with what my wife has said in her affidavits”.[20]
[20]See exhibit 1 at page 17 PCB
The medical and like evidence relied on by the Plaintiff
38 The plaintiff relies on the medical reports of her treating general practitioner, Dr Hakam Baglar, dated 7 August 2017, 30 April 2018, 5 October 2018 and 18 July 2019.
39 Dr Baglar reports that the plaintiff initially consulted him on 3 February 2015 when she gave a history that on or about 23 January 2015, when on a business trip to Adelaide on behalf of her employer, Avanade Australia Pty Ltd, she had to lift a carry-on suitcase containing work-related material. When performing such tasks, she became aware of lower back pain.
40 On examination at that time, her range of movement of her lumbosacral spine was normal and she was able to rise on her toes and heels. Furthermore, she had normal reflexes and sensation in her lower extremities, but complained of a dull sensation in her lower legs.
41 The only abnormality in her physical examination was reduced straight leg raising bilaterally, more on the left side.
42 Dr Baglar arranged for the plaintiff to undergo plain x-rays of her cervical and lumbar spines which were undertaken on 17 February 2015. In relation to her lumbosacral spine, the radiologist reported that alignment was normal, no bone or disc abnormality was seen, and the pedicles and sacroiliac joint were considered normal.[21]
[21]See exhibit 2 at page 23 PCB
43 Dr Baglar diagnosed the plaintiff to be suffering from “mechanical lower back pain due to aggravation of pre-existing (sic) degenerative changes in her lumbosacral spine because of the index injury”.[22]
[22]PCB 36
44 The plaintiff was certified “fit for modified duties” – that is to say, to work in an ergonomically-adjusted workstation, which was never provided.
45 Because of ongoing pain and the absence of any ergonomically-adjusted setting, and the ongoing requirement for the plaintiff to travel to locations and work in awkward situations, Dr Baglar also added “no interstate travel” on her work restrictions. The aim was to restrict her work to the base office in Melbourne. Dr Baglar noted that, subsequently, the employment of the plaintiff was terminated on the basis of “failing to fulfil the requirements of her employment contract”, that is to say, for not being able to travel interstate.
46 At the time of his first report, Dr Baglar was of the opinion that the plaintiff was capable of working in her pre-injury duties on a restricted time basis, and on the basis that she does not have to pursue interstate travel. Dr Baglar also notes that the plaintiff had a capacity to work with an alternative employer.
47 In his final report, Dr Baglar notes that he last saw the plaintiff in February 2019 (although the plaintiff also gave evidence that she had seen him in the last few weeks) and she was then complaining of ongoing lower back pain and the inability to perform certain physical activities in her professional and domestic life, like not being able to sit in front of a computer for long periods and also not being able to perform certain household chores like mopping, vacuuming and sweeping. Dr Baglar also noted, although not documented, he remembers the plaintiff talking about her difficulty in enjoying life “as she used to in the past and not being able to have an uninterrupted sleep”.[23] Dr Baglar also stated, in summary, in his last report that:
[23]See exhibit 1 at page 35 PCB
“In terms of the impact of her injuries in her vocational capacity, naturally she has to avoid any activity which may aggravates (sic) her pain. She has to avoid heavy pulling, pushing and lifting, as well as bending and rotating her spine in a repetitive manner. She has to avoid any employment which requires working in such manner. However, the above listed restrictions are applicable for process workers. She is a highly qualified professional and her profession does not require working in the described fashion. I believe the only impact of her physical injury on her vocational activity will be on her sitting capacity.
She may have difficulty to sit in front of [a] computer for long period and unfortunately her profession requires her to work in a sitting position for long hours. However, I believe this obstacle can be managed by working at an ergonomic work station.
In short, to state that because of her injury [the plaintiff] is made unemployable in the employment for which she is qualified for because of her education, experience and training will be exaggeration. She can work as an IT Manager with modification and with opportunity to change her position. She has capacity for work. I believe, with such arrangement, she can work full time.
…
The impact of her injuries in her domestic life will be that she will have difficulty to perform heavy household chores, like mopping, vacuuming and sweeping.
In terms of her recreational activities, I do not expect her to be fit for heavy physical sports, like basketball and volleyball; but, the recreational activities like going to theatre or to movies will not be affected. With her socializing, naturally she may not be in the mood to socialize when she has pain but her pain will not make her a hermit.
In summary, the plaintiff’s quality of life is adversely affected by her injury. However, due to the sedentary nature of her profession and also because of the available various measures, I do not think that her income producing capacity is affected.”[24]
[24]See exhibit 3 at page 46 PCB
48 The plaintiff also relies on reports from the physiotherapist, Mr Abhi Kalia, dated 1 September 2017 and 28 May 2018.[25]
[25]See exhibit 3 at pages 28-34 PCB
49 Mr Kalia notes that the plaintiff first attended for physiotherapy on 12 February 2015 complaining, at that time, of lower back pain which radiated down her legs. The origin of such pain was when she lifted some luggage containing work material on a work trip to Adelaide in January 2015.
50 Mr Kalia provided physiotherapy treatment over a few periods and comments in his last report that the plaintiff suffers – and will continue to suffer – from lower back pain, but continues to have a work capacity.
Medico-legal material relied on by the Plaintiff
51 The plaintiff relies on the medico-legal reports of the orthopaedic surgeon, Mr Russell Miller, dated 26 October 2018 and 11 June 2019 respectively.
52 When initially seen on 26 October 2018, Mr Miller, in particular, obtained a history from the plaintiff that, on 23 January 2015, she was travelling on a business trip to Adelaide during the course of employment, when she was lifting her suitcase, which she estimated to weigh about 19 kilograms, onto a table, and developed the onset of lower back pain and left leg pain.
53 At the time of the initial consultation, the plaintiff was complaining of lower back ache, discomfort and pain, mainly on the left side of her back, with some radiation to the left leg, with numbness and tingling in the left leg. The plaintiff stated her symptoms fluctuate but there has been no pattern towards improvement since the date of injury, and she also has problems with sleep disturbance and some difficulty at work.
54 The plaintiff also gave a history at that time that she was using a range of medications involving Panadeine Forte, Nurofen Plus, Voltaren, Panadol Extra, Temazepam, Pariet and Ranitidine. Also, she noted that she had undergone some physiotherapy.
55 Mr Miller performed an examination and noted that the plaintiff was cooperative, and a clear and straightforward historian.
56 The examination revealed diffuse tenderness, some reduced range of motion and straight leg raising caused lower back discomfort on the left and right sides at 50 degrees. Neurological examination was unremarkable, with power sensation and reflexes preserved.
57 At that time, Mr Miller had an MRI scan, dated 25 March 2015, of the lumbar spine, which revealed no significant abnormality,[26] and a further MRI scan of the lumbar spine, dated 14 January 2016, which revealed mild L3-4 disc desiccation with shallow annular bulge. There was no central canal stenosis or neural impingement. Minimal L5-S1 bilateral facet arthropathy.[27]
[26]See exhibit 2 at page 24 PCB
[27]See exhibit 2 at page 26 PCB
58 Mr Miller diagnosed the plaintiff to be suffering from a musculoligamentous strain to the lumbar spine and aggravation of degenerative disease in the lumbar spine. He noted that there was radiation to the lower extremity, but there were no other features to suggest radiculopathy, neurological deficit or structural injury.
59 Considering that the plaintiff had only had a moderate response to conservative measures and that she was not inclined to consider surgical intervention, he considered progress for the lumbar spine to be only “fair”.
60 When queried about the relationship to the work injury, Mr Miller stated:
“This is complex and multi-factorial. It is likely this lady had pre-existing disease in the lumbar spine. It is likely the evolution of that disease was aggravated by the work injury and further superimposed injury has occurred. It is also likely the chronic pain syndrome influences her current clinical presentation. I therefore regard her current clinical status as being substantially work related.”[28]
[28]See exhibit 3 at page 85 PCB
61 Mr Miller also considered that, because of her lumbar spine condition, the plaintiff should avoid repetitive bending, no heavy lifting, lifting of weights of more than 5 kilograms, and with the requirement to shift her posture on a regular basis.
62 Mr Miller obtained the history that the plaintiff has difficulty driving long distances or walking long distances. He accepted that she will have some reduction in her mobility as a result of her lumbar spine relationships.
63 Mr Miller also noted that the plaintiff, who lives with her husband and nine-year-old twins, has difficulty with heavier domestic and gardening activities, which are undertaken by her husband. She also currently self-funds home help.
64 Furthermore, the plaintiff previously enjoyed walking, singing in the choir (which involves prolonged standing) and cake decoration, all of which she has been unable to resume because of her lower back symptoms.
65 When seen again by Mr Miller quite recently (11 June 2019), the plaintiff complained that she has lower back pain, discomfort radiating into the back of her legs, particularly the left leg, with numbness and tingling in that leg. She considered that her overall condition was “much the same” as when first examined by Mr Miller.
66 The plaintiff stated that she continues to use a range of medications, including Panadeine Forte, Nurofen Plus, Voltaren, Panadol Extra, Temazepam, Pariet and Ranitidine.
67 Again, there was tenderness exhibited during examination, together with some restriction of lower back movement. Straight leg raising caused lower back discomfort on the left and right sides to 50 degrees and there was no neurological deficit and power, sensation and reflexes were preserved.
68 Mr Miller was of the same opinion, both in relation to the plaintiff’s diagnosis and the relationship to her work injury.
69 Mr Miller was also of the opinion that the plaintiff has had appropriate treatment to date, but future treatment may involve additional measures for pain management and rehabilitation. In particular, Mr Miller considered it was possible, but “unlikely” that the plaintiff would benefit from spinal surgery.
70 Mr Miller considered that the lower back injury to the plaintiff had stabilised (as it had been at the time of his last examination) and his assessment of her lifestyle evaluation was the same as that he had earlier recorded after the first examination.
Medico-legal material relied on by the employer
71 Those acting for the employer arranged for the plaintiff to be medico-legally examined by the following:
(a)the occupational physician, Dr M Lucas, who examined the plaintiff on 14 February 2017;[29]
(b)the occupational physician, Dr David Elder, who examined the plaintiff on 8 March 2018;[30]
(c)the orthopaedic surgeon, Mr Ian Jones, who examined the plaintiff (on behalf of the employers’ solicitors) on 19 April 2018.[31]
[29]See report dated 23 February 2017, exhibit “A” at pages 3-10 Defendant’s Court Book (“DCB”)
[30]See report dated 8 March 2017, exhibit “A” at pages 24-27 DCB
[31]See report dated 19 April 2018, exhibit “A” at pages 29-37 DCB
72 Dr Lucas examined the plaintiff approximately two-and-a-half years ago. At that time, she gave a history of injuring her lower back when picking up a suitcase during the course of a work trip to South Australia. In particular, she also gave a history of the various treatments undergone by her since the date of her injury. They included, in her estimation, one hundred physiotherapy treatments, trialling analgesic medications, anti-inflammatory medications, antidepressant medications, antiulcer medications and attending in the order of ten massages for her back. The plaintiff informed Dr Lucas that she is aware of lower back discomfort with radiations to both legs to the level of her feet, and pain is increased by prolonged sitting, and arising after sitting. At the time of the consultation, she was still working for the employer, and noted that she had been working for that company for the last ten years.
73 Examination at that time revealed discomfort present at the L5-S1 level, but she was able to heel raise, toe raise and able to undertake a full squat. Lower limb examination revealed no gross muscle wasting, and reflexes were brisk and symmetrical at the knee and the ankle.
74 Dr Lucas had available to him the MRI scans of the lumbar spine undertaken on 25 March 2015 and 14 January 2016. The opinions expressed by Dr Lucas were based on various questions – seemingly posed in relation to the plaintiff’s capacity for employment. Dr Lucas was of the opinion that the plaintiff was suffering mechanical lower back pain. Although Dr Lucas is of the opinion that the plaintiff did suffer from minor degenerative changes of the lumbar spine, he considered, at that time, that it was “challenging” to relate such symptoms to any particular work injury.
75 Dr Lucas considered that the plaintiff was capable of doing her full-time employment duties.
76 Dr Elder examined the plaintiff approximately thirteen months later and the purpose of his examination in relation to the lower back was to make an assessment of any impairment suffered by the plaintiff as a result of the accepted lower back injury.
77 At that examination, the plaintiff asserted, among other things, that she struggled to clean the house, and performing any type of vacuuming, or stooping when performing dishwashing, increases her back pain.
78 On examination, Dr Elder was of the view that the plaintiff appeared pain and disability focused and her affect was flat.
79 Examination of the spine showed a slight asymmetric decreased range of motion in the lumbar spine, but power sensation reflexes were all normal.
80 Ultimately, Dr Elder was of the opinion that the plaintiff had a history of mechanical lower back pain with no clinical evidence of radiculopathy, which was now complicated by an apparent psychological pain response.
81 In particular, I refer to the report of Mr Ian Jones, who examined the plaintiff on 19 April 2018. Mr Jones was the last doctor in time to examine the plaintiff and, indeed, the only orthopaedic surgeon relied upon by the employer.
82 The plaintiff informed Mr Jones that she suffered a back injury in January 2015, when she lifted a bag onto a nearby table. At that time, she experienced pain symptoms in her lower back, extending down to the front of her left thigh, causing some difficulty in walking.
83 Mr Jones had available the MRI scans of the lumbar spine, dated 25 March 2015 and 14 June 2016.[32] In particular, Mr Jones noted that the first scan, according to the radiologist, revealed early lumbar degenerative disc disease with disc dehydration and minimal posterior disc bulging at L3-4 to L5-S1. He also noted there was no report of any annular tear, disc herniation or significant disc bulge, and no evidence of any nerve compression. He considered that the investigation concluded no significant abnormality.
[32]See exhibit 2 at pages 24 and 26 PCB
84 Mr Jones obtained a history from the plaintiff of a constant discomfort in her lower back, which extended to the left groin and the anterior aspect of her left thigh. Furthermore, the plaintiff gave a history that she manages all activities of daily living, albeit with pain. Furthermore, she can walk for a limited period, can stand for approximately five minutes, and can sit to a limit of ten to fifteen minutes, after which she needs to move her position.
85 Examination of the plaintiff revealed a full range of lumbosacral flexion, but with pain at approximately L4-5 level of her lumbar spine. Neurological examination of both lower limbs was normal.
86 In his report, Mr Jones responds to a series of questions posed. In particular, he states:
“In the lumbar spine the patient’s symptoms and signs are consistent with mild degenerative disc disease involving particularly the L3-4 discs and possibly other levels in the lumbar spine, based on the MRI scan report. One of the reports suggests mild facet arthropathy at the L5-S1 level. There is no clinical evidence of any radiculopathy.”[33]
[33]See exhibit “A” at page 35 DCB
87 Furthermore, Mr Jones states:
“4. The incident described on 25 January 2015 had the capacity to exacerbate some back pain symptoms superimposed upon the mild degenerative disease involving the patient’s lumbar spine. There was no history to suggest that the patient’s left shoulder or left hip symptoms have been caused or aggravated by the incident.
5.The persisting symptoms in this patient’s lower back since the time of the injury reported on 25 January 2015 indicates an aggravation caused by the incident.
6.(a) The main incapacity in relation to this patient’s ability to perform her pre-injury employment would be with respect to the requirement to engage in interstate travel and undertake the training duties she was involved in.
(b) I do not believe that this patient’s condition-, would preclude her from undertaking suitable employment and Ms Guldogan has since commenced work for Telstra as of February 2018, in a similar role to that she was performing with her former employer.
(c) The patient reports an impact on her domestic activities at home as a consequence of her back and left hip complaint.
7.Currently I would restrict the patient from engaging in any work which requires repeated bending or lifting involving her lumbar spine … .
8.The patient’s current analgesic regime is taken specifically for her symptoms of back pain relief.
… .”[34]
[34]See exhibit “A” at page 36 DCB
The cross-examination of the Plaintiff
88 Under cross-examination, the plaintiff confirmed that she has been working in her current role since July 2018 at the Melbourne Airport.
89 The plaintiff also confirmed that she operates her own company called Guldogan Pty Ltd and that company provides her services to DLA at a rate of $750 per day. In this respect, she renders an invoice every two weeks for $7,500 plus GST for the proceeding ten days’ work.
90 The plaintiff accepted that over the period since July 2018, she has been working full time, and when queried as to whether she has applied for any permanent position, she noted there was no vacancy with her present “employer”, and has not applied for any other position.
91 The plaintiff accepted that she had not told her present “employer” about her pre-existing back injury and that she has no particular restrictions or limitation in her role. When queried by the Court as to what her day-to-day work actually involved, the plaintiff stated:
A:“I’m an IT business analyst. I gather – I speak to my stakeholders, business stakeholders and understand what the software systems’ requirements they have and I document them, I present them in the workshop and then I hand them over to our technical team to have it implemented and I se[e] throughout the whole software development of software being built, tested and delivered.
Q:Face-to-fact with clients, this type of thing?---
A:Yes.
Q:Involve travel?---
A:No.
…
Q:And then you, on the basis of that information, you prepare further things and submit it onto another department tor something?---
A:That’s correct.
Q:And when you say full time, that means from what time to what time?---
A:Nine to 5 usually”[35]
[35]T12, L5–20
92 The plaintiff confirmed that she has tertiary qualifications and that she is “still working in [her] chosen career”.[36]
[36]T12, L28–T13, L1
93 When queried as to whether she was doing similar work to her pre-injury duties, albeit with a different employer, the plaintiff gave evidence:
“A:“I had more responsibilities in my previous role as a manager, I had direct reports and I was career manager as well. I don’t have that at the moment.”
HIS HONOUR:
Q:“Just on that if you wave a magic wand and you get a permanent role with a particular company at the one you’re at now another one, would you be capable of doing those duties?---
A:To a certain extent I believe so.
Q:What’s the certain extent mean?---
A:Travel, (indistinct) travel would be great.
Q:And that’s on planes and the like, is it or you mean cars or both?---
A:Well, both. My current position is very close, it’s 15 minutes away form (sic) home so it’s a very short time to travel whereas with the other clients I usually go out wherever they are, they could be anywhere in Australia or overseas even so hence the reason why I prefer to stay where I am.”[37]
[37]T13, L4–20
94 When queried as to when the plaintiff last saw her treating general practitioner, Dr Baglar and, indeed, the frequency of her visits, the plaintiff responded by saying she last saw Dr Baglar two or three weeks prior to the hearing and generally sees him “around every three months”.
95 It was put to her that the clinical records of Dr Baglar suggest that he saw the plaintiff in February 2019, and prior to that, 3 August 2018. Such records did predate the last month or so, and subject to the plaintiff stressing that she saw Dr Baglar about two to three weeks ago, she ultimately accepted what was written there, but believed “it was less than that”.
96 The plaintiff was queried as to whether she had taken time off work and, if so, how much. Initially the plaintiff said that she would need to look at the record, but when pressed, she said about ten days, which was, in the evidence, ultimately made clear she meant over the last twelve months.
97 When pressed again about the last six months, the plaintiff gave evidence that she had lost four or five days. The plaintiff also gave evidence that when she did take a day off work, she did not necessarily see Dr Baglar, but rather received remedial massages or was resting at home usually. The plaintiff accepted she may have also taken half days off work.
98 When queried by the Court as to why these half or full days’ were taken off work, the plaintiff stated:
A:“I would usually have a very, very sharp pain on my lower back and my leg as well.
Q:When you say your leg, which leg?---
A:Left leg.
Q:Yes?---
A:And it’ll just be so excruciating that I would just need to just rest and take it easy.
Q:As far as you’re concerned, can you say as to – only say if you can, can you give any reason why that pain may have come on at that particular time or times?---
A:It might have been for running very long workshop sessions at times, the workshop might have been a day after each other.
Q:I see and they involve sitting down, do they?---
A:Meetings? Yes.”[38]
[38]T18, L14–24
99 The plaintiff accepted that she had not been referred to a specialist by Dr Baglar, nor had she sought to be referred to a specialist. She gave evidence that she was happy enough for Dr Baglar to manage her condition and he was prescribing the medications.
100 When queried by the Court as to her current medications, this evidence was given:
HIS HONOUR:
Q:“Are you on medication?---
A:Yes, I am.
Q:What are you on?---
A:Panadeine Forte, Nurofen Plus - - -
Q:And how often do you take Panadeine Forte?---
A:Every second to third day.
Q:And how many?---
A:Two a day.
Q:Two a day?---
A:M’hmm.
Q:How about the - - -?---
A:Nurofen Plus?
Q:Yes?---
A:Two to four a day, and that’s - - -
Q: Every day?---
A:Every - I swap - I try to swap between Panadeine Forte and Nurofen Plus.
Q:And how long have you been doing that?---
A:Alternate between the two. How long I’ve been doing that - ever since the doctor has prescribed it to me, since the injury.
Q:Yes, thank you.”[39]
[39]T19, L14–27
101 The plaintiff confirmed that Dr Baglar prescribed both the Nurofen Plus and the Panadeine Forte. The plaintiff also stated that she takes Pariet and Temazepam for being able to sleep. Furthermore, she takes Ranitidine for her stomach upset, and occasional Voltaren.
102 The plaintiff was taken to paragraph 48 of her first affidavit, where she describes that her main hobby was being able to be part of a social choir, which she was unable to do now because of the standing. It was put to the plaintiff that she had told a psychologist (which material was not contained in the Court Book) that she “used to sing in the choir but no time for anything anymore”. The plaintiff responded to such puttage, that that “doesn’t sound right”.[40] The following evidence was given:
[40]T22, L2–3
Q: “So you disagree with that?---
A: I have to disagree with that.”
HIS HONOUR:
Q: “Just tell me, prior to this injury, you were singing in this choir?---
A: M’hmm.
Q:And how often would you go to practice then, prior to- - -?---
A:Once or twice a week.
Q: And that was at a local church or something, was it?---
A: School.
Q: School?---
A: M’hmm.
Q: And for how long had you been doing that ‑ ‑ ‑?‑‑‑
A: M’hmm.
Q: ‑ ‑ ‑ leading up to your injury?‑‑‑
A: Since the year 2000.
Q: Since the year 2000?‑‑‑
A: M’hmm.
Q: Every week?‑‑‑
A: Most weeks.”[41]
[41]T22, L4–14
103 The plaintiff was cross-examined about the garden at her residence. She gave evidence that the front garden contains some plants and there are olive trees and hedges on either side of the property, and at the back there are some little plants and a swim spa. In particular, the following evidence was given:
Q:“So at the time you injured your back, what were you doing in the garden?---
A:I would be pulling out the odd little weeds, making sure it’s nice and clean the front garden, planting plants and weeding and cleaning, maintaining it.
Q:Did you use a kneeler, kneelers you use in the garden?---
A:What was that?
Q:Did you use a kneeler, one of those - - -?---
A:No.
Q:You could use a kneeler now if you wanted to? Can you kneel down?---
A:I can kneel down.
Q:Yes. So you can still do a little bit of gardening?
A:Not to that extent, no.
Q:But you still do some gardening?
A:No.”
HIS HONOUR:
Q:“Who does the gardening, if anyone?
A:At the moment, no-one. My husband tries to whenever he can get around to it.
Q:Right. Who cuts the lawns and things like that?
A:Sorry?
Q:Who cuts the lawn and things like that?
A:Last time, our next door neighbour did because it was overgrown.
Q:But is that - well, someone must - the lawn needs to be cut reasonably regularly. How often that occurs or who does it then - your husband or - - -?
A:Yeah, my husband.”[42]
[42]T24, L28–25, L17
104 The plaintiff was cross-examined about her allegation in her affidavit about disruption of her sleep. In response, the plaintiff confirmed that she had sought help from her general practitioner and that he had prescribed her with Temaze or Temazepam.
Q:“Yes?---
A:Which I am taking to be able to sleep.
Q:Is it the anxiety? Because you have had some anxiety?---
A:I do have anxiety. I believe I do.
Q:And is that the - does that cause you problems with your sleep?---
A:No.
Q:Just the back injury?---
A:Absolutely.”
HIS HONOUR:
Q:“Just so - I think I understand what you mean, but just spell it out for me. What are you saying - you’re not sleeping at night you say because of your back injury. What do you mean by that?---
A:When I lie down, I’m in so much pain that I have trouble falling asleep, and if I do end up falling asleep - if I do end up falling asleep, I do wake up with pain and I am groaning at night which - - -
Q:And what sort of frequency as far as you are concerned would that occur with?---
A:Once to three times a night.
Q:Every night?---
A:Most nights.
… .”
MR DUNSTAN:
Q:“So this is happening every night but you don’t go back to see your GP about it? Well, this - no, this happens most nights?‑‑‑
A:Yes.
Q:That you wake up groaning every ‑ ‑ ‑?‑‑‑
A:Yes, when I don’t take my medication especially.
Q:If you take your medication?‑‑‑
A:It helps me sleep throughout.
Q:And you can sleep all the way through?‑‑‑
A:Four hours to five hours, if I take temazepam. It makes me sleep about five hours. Yep.”[43]
[43]T25, L31–T26, 26
105 The plaintiff was also queried about her back pain and her left leg pain, and she confirmed that she gets lower back pain and referred left leg pain. In response to a query by the Court as to the frequency of the referred leg pain, the plaintiff stated:
HIS HONOUR
Q:“…
A:“Most of the time, when I have a very sharp pain on my left - lower back, that’s when it really kicks in and it’s really intensely excruciatingly painful when it hits.
Q:And just the left leg?---
A:Just the left leg, yeah.
Q:Yes, thank you.
MR DUNSTAN:
Q:So excruciating pain. How often do you get that?
A:It varies over time. Depending on how my workload is at that moment, it can get really painful, like say twice a month, three times a month.”[44]
[44]T27, L21–30
106 The plaintiff was referred to exhibit “B”, which are the tax invoices issued by Guldogan Pty Ltd for services supplied by the plaintiff to DLA. Such invoices are dated 11 February 2019, 25 February 2019, 12 March 2019, 25 March 2019, 8 April 2019, 23 April 2019, 6 May 2019, 20 May 2019, 3 June 2019, 17 June 2019 and 30 June 2019.
107 In particular, counsel for the employer highlighted the number of days that the plaintiff charged over each ten-day period, and thus the number of days that she worked over that period. It is to be noted that the invoice dated 3 June 2019 would suggest that the plaintiff missed two days’ work. The invoice dated 20 May 2019 would suggest that she only worked eight days, although she accepted one of those days she did not work would have been Anzac day so, accordingly, missing effectively one day through being “sick”. The invoice dated 23 April 2019 records that she only worked nine days, but she accepted that Good Friday fell within that period, which would explain not working on that day. The invoice dated 25 March 2019 recalls that she only worked nine days, but she accepted that Labour Day falls within that period, which would explain the one missing day.
108 It was put to the plaintiff that she was working full time, missing minimal time and, in particular, the plaintiff gave the following evidence:
A:“Yep - with the current employment, I’m lucky that I can work from home sometimes, and also the days that I miss, I can do my week - on a weekend. I can rotate, like I - actually working on a weekend, I can show it as a full-time invoice for that period as well. So there was a couple of occasions where I had to do - - -
Q:You weren’t - I’ll suggest for argument’s sake, say you had a Tuesday you didn’t work because of your back?---
A:Yeah.
Q:What - on Saturday, for argument’s sake - - -?---
A:Yep.
Q: - - - would you go to Tullamarine or would you- - -?--
A:No.
Q:You would work at home to make it up, effectively?---
A:Yes, yes.
Q:Yes, I see?---
A:And the project manager does let me do that, which is nice of him.”[45]
[45]T30, L22–T31, L4
109 The plaintiff rejected the proposition put by counsel for the employer that her employment with the employer prior to her injury also permitted her to work from home from time to time and stated “[n]ot when I was on a project, no”.[46]
[46]T31, L8
110 The plaintiff accepted that at other times they might, but stressed, when you are on a client project you had to be on the client project face to face with the client, and the premises of the client may be at their head office or involve interstate work.
111 In response to a question from the Court, the plaintiff accepted that she took an occasional Nurofen Plus prior to her back injury, which was for headaches and/or migraine. However, she had never taken Panadeine Forte nor, indeed, Temaze of Temazepam, prior to her back injury.
The re-examination of the Plaintiff
112 The plaintiff informed the Court that although her contract with DLA requires that she work from 9.00am to 5.00pm, she does have flexibility about her hours and that the bottom line is that if work has to be done, you do it.
113 The plaintiff was re-examined about that area of cross-examination, that when she went off work she had not attended Dr Baglar nor, indeed, sought any specialist treatment, to which she responded that Dr Baglar had already provided medication.
114 In particular, the Court made the following enquiry:
Q:“Has there been any treatment recommended by Dr Baglar that you haven’t taken up?---
A:Physiotherapy, which I have taken up- - -
Q:And how did that go?---
A:I didn’t really - well, find it helpful. Then I have sought remedial massage at my own expense.
Q:Now, you have talked about remedial massage?---
A:M’hmm.
Q:How often would you get to work on a remedial massage?---
A:Every fortnight.
Q:Every fortnight?---
A:Yep, and I would also see a biomedical naturopath, in a nutshell, for a special medication and some remedial massage at her place as well.
Q:So it’s a one-stop shop so to speak?---
A:Yep.
Q:Remedial massage and some other - - - ?---
A:Yes.
Q:Just so I understand this, counsel put to you I think over the last six months, let’s just take the last six months, how often would you be going to the remedial masseur?---
A:Every fortnight. Sometimes it was weekly – I’d say two to three week s- every two to three weeks.
Q:Who pays for that?---
A:I do.
Q:Is that in relation to back solely or back and other things or what?---
A:Back and while I’m having the massage I get my shoulders done too, full body.
Q:Is the massage assist you in relation to your back?---
A:Yes, definitely.
Q:In what way?---
A:It helps alleviate the pain at that moment but then again that pain comes back again in the next – one or two days later.”[47]
[47]T33, L7–T34, L2
Conclusion
115 As I have already recorded, counsel for the employer made plain that there is no issue that the plaintiff suffered a compensable lower back injury arising out of or in the course of her employment with the employer. Furthermore, counsel made clear that such lower back injury gave rise to impairment and some consequences.
116 The critical issue is whether the plaintiff has discharged her onus to establish that, as a matter of probability, such back injury is a “serious injury” within the meaning of the Act – that is to say, whether there has been a satisfaction of the “narrative test”.
117 To obviate any risk of doubt, I do find after a consideration of all of the evidence that:
(a)The plaintiff did suffer a lower back injury arising out of or in the course of her employment with Avanade Pty Ltd on or about 23 January 2015;
(b)For reasons which I will expand on later in this judgment, I am also satisfied, as a matter of probability, that such injury has given rise to impairment of the lower back with various consequences.
118 Before making any findings of fact in relation to consequences suffered by the plaintiff and determining the critical issue as to whether or not she has suffered a “serious injury”, it is apposite to make findings on the credibility and reliability of the plaintiff. Counsel for the employer submitted that he was not intending to make any “substantial attack on the plaintiff’s credit”,[48] but further submitted that this was a case where “at the margin she’s over-egging it” about her complaints of pain.
[48]See T42, L16–17
119 Having the advantage of seeing the plaintiff being cross-examined in relation to a variety of issues, I formed the view that the plaintiff, although, to a degree, injury and pain focused, was attempting to give honest and responsive answers to the questions posed to her. I do not accept that she consciously set out to “over-yolk” the contents of her evidence, and many times accepted that she can do a variety of activities, albeit with some difficulty.
120 Understandably, counsel for the employer highlighted the radiological material and, in particular, the MRI scans undertaken of the plaintiff’s lower back on 25 March 2015 and 14 June 2016. Both these scans, although showing some evidence of degeneration, did not reveal any prolapse, impingement of the nerve, or any significant abnormality. I also accept that no doctor made a diagnosis of clinical radiculopathy, but both the treating general practitioner and the two orthopaedic surgeons obtained consistent histories of radiation of pain into the left leg.
121 After a consideration of all the evidence, I consider that the lower back injury suffered by the plaintiff can be best described as an aggravation of pre-existing degenerative disc disease. Such view is consistent with that of the orthopaedic surgeon, Mr Jones, who examined the plaintiff on 19 April 2018, at the behest of the employer, and that of the orthopaedic surgeon, Mr Miller, who examined the plaintiff on two occasions, the last being 11 June 2019, and who considered that the work incident also aggravated pre-existing lumbar degenerative disease, and also a degree of Chronic Pain Syndrome I also noted that the treating general practitioner, Dr Baglar, also diagnosed mechanical lower back pain due to aggravation of pre-existing degenerative changes in the lumbar spine. I am also satisfied that to the extent there is any suggestion of psychological factors playing some role in her presentation, there is a clear, identifiable organic injury.[49]
[49]See Meadows v Lichmore Pty Ltd [2013] VSCA 201
122 Furthermore, and bearing in mind that symptoms have been experienced by the plaintiff for over the last four-and-a-half years and, indeed, the opinions of the two orthopaedic surgeons, I consider the consequences of such injury and impairment to be permanent.
123 I refer to the following principles enunciated in various Court of Appeal decisions, and which are of some assistance in determining whether a compensable injury with resultant impairment and consequences is a “serious injury” within the meaning of the Act:
(a)As stated by the Court of Appeal (consisting of Osborn and Beach JJA), in Ellis Management Services Pty Ltd v Taylor:[50]
[50][2013] VSCA 326 at paragraphs [57]-[59]
“The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.[51]
[51]Reference was made by the court to Humphries & Anor v Poljak [1992] 2 VR 129
Nevertheless the relevant assessment must be made objectively by the Court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.”
The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range. Indeed the case for the appellant was opened to his Honour on this very basis, namely that this was ‘very much a range case’;”
(Footnote omitted.)
(b) Also, the Court of Appeal in Ellis, stated, at paragraph [52]:
“…After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.”;
(c)I also refer to the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[52] wherein Maxwell P set out various principles in evaluating the “pain and suffering consequences”. I take account of all those principles. In particular, I refer to paragraphs [14]-[15] under the heading “The disabling effect of pain”, wherein Maxwell P states:
“As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘…[I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[53]
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’”[54]
[52](2010) 31 VR 1
[53]Reference was made to Dwyer v Calco Timbers Pty Ltd [2008] VSCA 260,at paragraph [27]
[54]See Dwyer (No 2) (op cit) [25]
124 After a consideration of all of the evidence, and bearing in mind the legal principles to which I have referred, I make the following findings of fact:
(a)The plaintiff is a forty-two-year-old married woman with twin sons aged nine. On leaving secondary school, she attended university and obtained a Bachelor of Engineering (Computer Systems) in 1998. After graduating, she initially worked as a software engineer and later as a business analyst-project manager;
(b)In August 2006, she commenced employment with the subject employer, Avanade Australia Pty Ltd, initially as a technical consultant, and later became a business analyst/project manager;
(c)In particular, that employment involved, among other things, making presentations where she was required to travel to the premises of potential clients, which sometimes involved interstate travel. Furthermore, she needed a large carry-on case containing her laptop and a variety of other documents, along with other materials, when consulting with these potential clients;
(d)Prior to her “injury” on 23 January 2015, she had experienced some mild lower back, neck and shoulder pain, but never needed any treatment other than an occasional massage;
(e)At the time of incident, she felt a sharp pain in her lower back, which shot into her hip and down her left leg. The pain persisted, and she initially consulted a myotherapist she had attended in the past, but on obtaining no benefit from such treatment she then consulted a general practitioner, Dr Baglar, who initially consulted with the plaintiff on 3 February 2015, and has continued to see the plaintiff intermittently from then to this date;
(f)The plaintiff accepted that she has not sought any referrals to any specialists or, indeed, has Dr Baglar referred her to any specialists (in relation to her back). Dr Baglar has, over the years, referred her for physiotherapy, from which the plaintiff had limited response, and also to a psychologist for inter-current anxiety;
(g)The plaintiff has suffered, since the time of her injury, ongoing lower back pain, which she describes as a dull ache, and which is manageable. However, if she overdoes it, she experiences sharp pain, and that pain can be excruciating. Furthermore, she also has left leg pain, which is generally no more than a dull ache, with the experience of some numbness and pins and needles on occasion. However, when the lower back pain is very sharp, she also experiences severe left leg pain. I accept her evidence that the frequency of the severe pain varies over time, depending on her workload. At present she estimated that she would have reasonably painful symptoms two or three times a month, although she added she considered her back pain was generally worsening;
(h)Dr Baglar has prescribed medication throughout the period of time since the injury. At present, the plaintiff takes approximately two Panadeine Forte every second to third day, and also takes approximately two to four Nurofen Plus on the alternate days, attempting to switch between Panadeine Forte and Nurofen Plus. Dr Baglar prescribes this medication, as he also prescribes Pariet, Temaze and Temazepam, to aid her sleep at night, and Ranitidine for stomach problems (as a result of taking the medication), and also the occasional Voltaren;
(i)I also accept the evidence of the plaintiff that for over at least the last six months or more, she has been attending a remedial masseur at least every fortnight, and sometimes weekly, which is primarily to aid her back condition, although she does have her shoulders massaged also. She pays for such remedial massaging;
(j)I accept that her attendance at a Turkish choir was her main hobby and that she had been undertaking such activity from about 2000, and attended practice once or twice a week for about two hours. Such activity had to be given up because of the continuous standing, which caused problems with her back;
(k)She has had disrupted sleep as a result of her ongoing back pain. Dr Baglar, in his reports, makes clear that the plaintiff did complain of such problems and there has been the prescription of Temaze and Temazepam to help her sleep. In particular, I accept the evidence of the plaintiff that when she lies down, the pain that she experiences causes her difficulty falling asleep, and if she does end up falling asleep she will wake up with pain during the night. This can occur two to three times a night, but is eased by her medication, but even with the medication, her sleep is limited to about four to five hours per night;
(l)Although she is capable of doing most of her home duties, she does it in a slower manner and has been required to employ a cleaner once a fortnight to do the heavier cleaning work. She also has difficulty in the garden and is unable to do the same amount of gardening, which she enjoyed very much, as it brought her outdoors. She presently is unable to do much, if anything, in the garden;
(m)The plaintiff commenced her present role in July 2018 at the Melbourne Airport, and operates as an independent contractor through her company, Guldogan Pty Ltd, offering her services for work. She submits invoices on the basis of $750 per day, so for a standard two weeks of work she would earn $7,500 plus GST – a total of $8,250 a fortnight. Her present job involves limited travel from her place of residence to Melbourne Airport, and does not involve any travel to visit clients either around Melbourne or, indeed, interstate. She gave evidence that her current employer is unaware of her back injury and that she can perform her current role. In relation to this contractual work, I find:
·Although the hours are usually nine to five, she has a degree of flexibility and, indeed, in certain circumstances can work from home far more than when she was working for the subject employer.
·Although the plaintiff accepted she is utilising her Bachelor of Engineering qualifications and still working in her chosen career, she notes that she had more responsibilities with her previous employer as a manager.
·That although the plaintiff is capable of full-time employment, she has lost some days off work. Initially, she thought four to five in the last six months or so, but the records would suggest it is slightly less than that; three-and-a-half days, although she noted that she would sometimes work at home when her back was causing difficulties, which was permitted, as long as that work can be done at home.
·I accept the plaintiff when she asserts that, although the duties she undertakes now are similar to those with the subject employer there is a greater degree of flexibility, allowing her to move around and generally accommodate any ongoing back pain, and, in particular, there is no necessity to travel either around the Melbourne area or, indeed, interstate, which, she believes, would cause great difficulty, as it did with the subject employer when she returned to that job after her injury.
·In part, she notes that because she is pursuing a contractor’s role rather than a direct employee at that this stage, she has no opportunity to rise to higher roles in an IT company leading to a directorship.
125 I consider that the consequences of her lower-back injury impairment have impacted on her social, recreational, domestic and work activities, as detailed above.
126 In relation to her work duties, it is clear that there must be a distinction between loss of earning capacity consequences and pain and suffering consequences.[55] In particular, the Court of Appeal in Ellis referred to the decision of Maxwell P in Haden,[56] and noted that the loss of the ability to engage in particular forms of employment may be relevant to the issue of pain and suffering consequences in the following ways – there might be a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. There may be also pain and suffering consequences in respect of any frustration of a worker being unable to perform activities that he or she used to be able to perform. I do find that the plaintiff would be unable to perform work where there was interstate travel and the need to carry heavy bags to facilitate client contact. In this sense, I consider there is an element of pain and suffering when the plaintiff considers that her projected employment has been impacted by this injury.[57]
[55]See Ellis (op cit) at paragraphs [34]-[35
[56](Op cit)
[57](Op cit) at paragraph [44]
127 The disposition of this matter is a lineball decision. I do not consider that any particular consequence taken alone satisfies the narrative test. However I am satisfied that the various consequences found by the Court to have been suffered by the Plaintiff collectively discharge her onus of satisfying the narrative test.
128 Accordingly, I grant leave to the plaintiff to bring common law proceedings in respect of pain and suffering damages for the injury to her lower back arising out of or in the course of her employment on or about 23 January 2015.
129 I will hear the parties on the question of costs.
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Exhibit “A”
1 The plaintiff tendered the following material:
EXHIBIT 1
– affidavits of the plaintiff, sworn on 24 September 2018, 24 June 2019 and 13 August 2019
– affidavit sworn by the husband of the plaintiff on 2 July 2019
(All such material found at pages 2-10, 16-17, 18-22 and 102-104 of the Plaintiff’s Court Book (“PCB”).
EXHIBIT 2
– plain x-ray of the cervical spine and lumbosacral spine, dated 17 February 2015
– MRI scan of the lumbar spine, dated 25 March 2015
– MRI scan of the lumbar spine, dated 14 June 2016
(Radiological reports found at pages 23-24 and 26 of the PCB).
EXHIBIT 3
– a report of the treating physiotherapist, Mr Abhi Kalia, dated 1 September 2017 and 21 May 2018
– reports from the treating practitioner, Dr Hakam Baglar, dated 7 August 2017, 30 April 2018, 5 October 2018 and 18 July 2019
(Such reports found at pages 28-46 PCB).
EXHIBIT 4
– medico-legal reports of the orthopaedic surgeon, Mr Russell Miller, dated 26 October 2018 and 12 June 2019
(Such reports found at pages 80-93 PCB)
2 The defendant tendered the following material:
EXHIBIT “A”
– medico-legal reports of the following doctors:
– report of the occupational physician, Dr Michael Lewis, dated 23 February 2017
– report of the occupational physician, Dr David Elder, dated 8 March 2018
– report of the orthopaedic surgeon, Mr Ian Jones, dated 19 April 2018
(Such reports are found at pages 3-16 and 24-37 of the Defendant’s Court Book (“DCB”).
EXHIBIT “B”
– Guldogan Pty Ltd tax invoices
(Such material found at pages 47-57 of the DCB).
0
8
0