Haw, Susan Marie v Alcheringa Hostel Ltd
[2009] VCC 990
•11 August 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-01208
| SUSAN MARIE HAW | Plaintiff |
| v | |
| ALCHERINGA HOSTEL LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 5 and 6 August 2009 |
| DATE OF JUDGMENT: | 11 August 2009 |
| CASE MAY BE CITED AS: | Haw, Susan Marie v Alcheringa Hostel Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0990 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 - whether the consequences of a lower back injury suffered by the plaintiff were at least very considerable for pain and suffering and loss of earning capacity consequences arising out of a lifting incident - leave granted for pain and suffering - whether the consequences of a psychiatric injury suffered by the plaintiff arising out of alleged bullying and harassment were severe for pain and suffering and loss of earning capacity consequences - leave refused : section 134AB (c), (d), (f) and (g).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Garden & Green |
| Mr I Fehring | ||
| For the Defendant | Mr D Myers with | Wisewould Mahony |
| Ms J Forbes | ||
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 29 May 2007 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant as a result of bullying and harassment which occurred in about November 2006, and a specific injury to her lower back which occurred on 17 March 2007.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity for both injuries.
3 Mr T Monti appeared with Mr I Fehring of Counsel for the plaintiff and Mr D Myers appeared with Ms J Forbes of Counsel for the defendant.
4 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined •
The plaintiff tendered the following evidence: the Plaintiff's Court Book ("PCB") pages 27-38 and 69-101 and from the Defendant's first Court Book ("DCB1") pages 32-33; 39-54; 60-74; 75-80 and 86-90, and from the Defendant's second Court Book ("DCB2") pages 1-153: Exhibit A
• AMP claim of the plaintiff dated 26 March 2001: Exhibit B • The defendant tendered the following evidence:
ƒ film taken of the plaintiff on 31 January 2008: Exhibit 1 ƒ film taken of the plaintiff on 26 and 27 June 2009: Exhibit 2 ƒ film taken of the plaintiff on 16 and 17 July 2009: Exhibit 3 ƒ the Defendant's Court Book pages 1-31; 34-38; 55-59 and 81-85,
and from the Plaintiff's Court Book page 94A: Exhibit 4
The Statutory Scheme
5 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
6 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than "serious to the extent of being severe" .
(f)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(g)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(h)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(i)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(j)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(k)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(l)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross
[4] (1994) 1 VR 436
7 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
8 The plaintiff was born on 31 August 1952. She is now fifty-six years of age. She is married, but separated from her second husband.
9 The plaintiff’s level of secondary education is modest. She completed Form 2 in Echuca.
10 Prior to commencing employment with the defendant, the plaintiff worked for the Swan Hill Aboriginal Cooperative Limited in either 2000 or 2003 for between three to six months as a coordinator. The Cooperative was put into liquidation because of financial difficulties. That event brought the plaintiff's employment to an end.[5]
[5] Transcript 68
11 The plaintiff was then employed with Yooralla, caring for adults suffering with disabilities. She commenced that employment about eighteen months after her employment with the Cooperative came to an end. She described the work as very heavy, involving handing out medication, bathing and feeding residents. She worked with Yooralla for about nine months.[6]
[6] Transcript 69
12 The plaintiff then worked at an aged care institution in Kerang. She described the work as very heavy, involving showering, toileting and transporting residents into wheelchairs.[7]
[7] Transcript 69
13 The plaintiff subsequently undertook a course of study to obtain a certificate relevant to the work which she desired to undertake. The course of study extended over six months. She was required to attend Melbourne three days per month and at the same time undertook on the job training at the institution in Kerang.[8]
[8] Transcript 69-70
14 The plaintiff then commenced employment with the defendant on 31 May 2006 as a personal care attendant.
15 On 17 March 2007, the plaintiff was showering a resident in a confined and small space. The plaintiff had the assistance of another worker and the use of a device described as a Mayfair belt to assist her to support the resident. During the course of showering the resident, the plaintiff took the weight of the resident, which resulted in her suffering severe pain in her lower back.[9]
[9] Transcript 37-38
16 In about November 2006, the plaintiff took an early tea with another worker. Her supervisor shouted at her. The plaintiff responded by saying that she wanted to go home. The supervisor told the plaintiff that if she went home it would damage her appraisal.
17 Further, the plaintiff said that she was treated like "a dog" by a supervisor named Rosa Wu.
18 The plaintiff expanded upon what was generally described as the workplace bullying and harassment in her oral evidence. She said that other supervisors, Joan Madge and Karen Barnes, also bullied and harassed her. She said one further aspect of the bullying was being yelled at. Another aspect of the bullying was asking for help and it being refused by her supervisors. [10]
[10] Transcript 75
The Application
19 Mr Monti opened the plaintiff's case on the basis that the injury to her lower back had caused an impairment of the function of her lower back with consequences both in terms of pain and suffering and loss of earning capacity which met the statutory tests.
20 In relation to the bullying and harassment, Mr Monti opened the plaintiff's case on the basis that she had suffered a mental or behavioural disturbance or disorder with consequences both in terms of pain and suffering and loss of earning capacity which met the statutory test.
The Lower Back Injury
21 Mr Myers submitted that the evidence disclosed that the plaintiff had suffered from a lower back problem of long standing. Furthermore, that it disclosed that the plaintiff had not informed any of the examining medical practitioners that she had suffered a previous lower back problem.
22 Mr Myers submitted that the non disclosure of the previous lower back injury deprived the examining medical practitioners of the full history which, if they had it in their possession, would probably have changed their opinions relevant to whether the plaintiff had consequences in terms of pain and suffering and loss of earning capacity which met the statutory tests.
23 There is no doubt that the plaintiff either denied suffering a previous lower back problem or that she had no previous relevant medical history – to Mr O'Brien, orthopaedic surgeon;[11] Mr Scott, general surgeon;[12] Professor Marshall, surgeon;[13] Dr Kostos, rheumatologist;[14] Dr Brown, occupational physician;[15] Dr Shan, psychiatrist;[16] and Mr Shannon, orthopaedic surgeon.[17]
[11] PCB 36 -a denial
[12] PCB 82 -a denial
[13] PCB 97. When asked about her past medical history, the plaintiff did not make a denial to a specific question about whether she had suffered any previous lower back problem, but failed to mention it
[14] DCB1 56. When asked about her past medical history, the plaintiff did not make a denial to a specific question about whether she had suffered any previous lower back problem, but failed to mention it.
[15] DCB1 61- a denial
[16] DCB1 67 When asked about her past medical history, the plaintiff did not make a denial to a specific question about whether she had suffered any previous lower back problem, but failed to mention it.
[17] DCB1- a denial
24 Mr Myers submitted that the clinical notes of the Swan Hill Medical Group are replete with entries recording attendances by the plaintiff for lower back problems for which she was often prescribed Ducene.
25 The first record of the plaintiff having suffered an injury to her lower back is on 27 January 1998. The clinical notes disclose that the plaintiff suffered from a lower back problem since childhood.[18] The notes refer to a CT scan which was taken on 15 July 1996.
[18] DCB2 56
26 Both Mr Myers and Mr Monti addressed me at some length about that CT scan when compared with the subsequent CT scan. It revealed the following:
"High resolution finely collimated scans were performed from the L3 to
the S1 levels.L3/4 There is mild diffuse annular bulging, but no evidence of a focal disc bulge.
L4/5 There is moderate diffuse annulus bulging with a shallow left posterior and left postero-lateral disc prolapse extending into left neuro- exit foramen. If this were to have an effect it would be predicted upon the traversing about to exit left L5 nerve root.
L5/S1 Unremarkable."[19]
[19] DCB2 49
27 Mr Myers referred me to the following entries in the clinical notes which he submitted also demonstrated that the plaintiff had an actively symptomatic lower back – a letter of Dr Moynihan, general practitioner, dated 1 October 2000 referring to the plaintiff suffering lumbar spondylosis;[20] another letter of Dr Moynihan dated 3 July 2001 containing an entry that the plaintiff was prescribed Ducene taken occasionally for back spasms;[21] a superannuation disablement claim dated 11 May 2001 made by the plaintiff in which she referred to suffering from lower lumbar problems;[22] the clinical note dated 16 May 1996 referring to pain in the lower back and into the right buttock;[23] a health summary taken as a prelude to the commencement of clinical notes in 1998 which contains a reference to active problems suffered by the plaintiff, including spondylosis;[24] the clinical notes dated 3 October 1999 referring to the plaintiff suffering a sore back with pain into the right buttock;[25] a plain x-ray of the plaintiff’s lower back taken on 13 March 2001;[26] the clinical note dated 18 July 2001 referring to the plaintiff’s lower back and a prescription for Panadeine Forte;[27] the clinical note dated 29 August 2001 referring to the plaintiff using Ducene for back spasm;[28] the clinical note dated 25 September 2001 referring to the plaintiff suffering spondylitis of her back;[29] the clinical notes dated 15 February 2002 referring to the plaintiff suffering back spasm;[30] the clinical notes dated 5 May 2003, 10 October 2003 and 11 November 2003 referring to the plaintiff using Ducene for back spasm and[31] the clinical notes dated 5 January 2004, 8 April 2004 and 18 May 2004 referring to the plaintiff using Ducene for back spasm.[32]
[20] DCB2 58
[21] DCB2 59
[22] DCB2 63
[23] DCB2 129
[24] DCB2 117
[25] DCB2 121
[26] DCB2 130
[27] DCB2 82
[28] DCB2 83
[29] DCB2 83
[30] DCB2 124
[31] DCB2 87
[32] DCB2 88
28 Mr Myers cross-examined the plaintiff on many of the entries referred to above.[33] The plaintiff's invariable answer was that she could not remember suffering a lower back problem in the past nor the medical treatment that the clinical notes suggest that she obtained for it. The plaintiff said that she has trouble with memory even to the extent of not remembering events which occurred a couple of days ago.[34]
[33] Transcript 11 - regarding the prior CT scan and the superannuation claim, and generally at T 26 regarding many of the clinical entries
[34] Transcript 64
29 The foregoing analysis undertaken by Mr Myers, together with the cross- examination he conducted, led to him ultimately submitting that in the absence of a clear history given to medical practitioners who examined the plaintiff, that their opinions are valueless.
30 The fact that the plaintiff did not give any history of her prior lower back injury is a matter of significance, however, it needs to be measured against the fact that the plaintiff returned to employment and appeared to be able to cope with it until she suffered the injury.
31 I will now turn to the medical opinions relevant to an assessment of the plaintiff’s lower back injury.
32 Following the occurrence of the injury, the plaintiff has been treated mainly by Dr Awal, general practitioner.[35] He referred the plaintiff for a CT scan which was taken on 4 April 2007. The radiologist summarised the appearances on the CT scan as follows:
[35] Dr Awal is a medical practitioner who practices from the Swan Hill Medical Group
"1 Circumferential disc bulges at L4-5 with the left para central
component and impingement left exiting L4 nerve root.2
Mild lumbar spondylosis and facet arthropathy, particularly at the lumbar sacral junction.
3
Circumferential disc bulge is at L3-4 and L5-S1 not associated with canal stenosis or neural impingement." [36]
[36] PCB 90
33 Dr Awal commented on the CT scan in reports dated 5 December 2007,[37] 10 December 2007[38] and 1 December 2008.[39] In the latter report, Dr Awal appears to agree with the opinion of the radiologist regarding the appearances on the CT scan.
[37] PCB 89
[38] PCB 88
[39] PCB 69
34 He referred the plaintiff to Dr Gassin, physician, who the plaintiff saw in February 2008. Dr Gassin suggested the plaintiff undergo lumbar medial branch blocks and radio-frequency denervation of her symptomatic facet joints, but the plaintiff did not have that treatment. It is not clear why the plaintiff did not undergo that treatment.
35 Dr Awal was of the opinion that the plaintiff was suffering from chronic pain due to a prolapsed disc,[40] and was not able to return to her pre-injury work. He prescribed her a Norspan patch, Panadeine Forte, Endone and Ducene for her back pain.[41] I understand that a Norspan patch is slow-release morphine and Endone is morphine based. Panadeine Forte is a well-known strong painkilling medication, and Ducene is used for the treatment of muscle spasm.
[40] PCB 89
[41] PCB 89
36 It is not clear to me when Dr Awal commenced practising at Swan Hill Medical Group. He would have had access to the plaintiff's voluminous medical records in which all of the attendances by the plaintiff to which Mr Myers referred are contained. I am unable to conclude that the opinion expressed by Dr Awal regarding the plaintiff's lower back injury was given in the light of that history or in ignorance of it.
37 Professor Marshall examined the plaintiff on 10 August 2007. On examination, he found some diminished sensation over the plaintiff’s lower leg on the left side in the L4-5 distribution. He also found that her reflexes at the left knee and ankle were sluggish but symmetrical with her plantars downgoing. On the basis of his examination, Professor Marshall was of the opinion that the plaintiff had suffered mechanical lower back pain and probably left-sided radiculopathy, presumably from the L4-5 disc.[42]
[42] PCB 99-100
38 Professor Marshall was asked to clarify a number of matters contained in his first report. He then expressed the opinion that the plaintiff’s lower back injury contributed to her symptoms and work incapacity. He was of the opinion that the plaintiff had the capacity to return to work with restrictions on lifting to 5 kilograms or less, and avoidance of frequent bending, stooping, pushing or pulling.[43]
[43] PCB 102
39 Mr Scott examined the plaintiff on 14 January 2008. On examination, Mr Scott found diminished movement, but no neurological deficit. He was of the opinion that the plaintiff had aggravated multilevel disc degenerative processes in her lower back resulting in intermittent lumbo-sacral nerve irritation which was the cause of her left leg pain.
40 Mr Scott was of the opinion that the plaintiff had no capacity for work. He referred to the plaintiff also having developed an anxious or nervous or depressive reaction. He considered that the plaintiff's symptoms had been magnified by the development of what he then described as a major depressive disorder. The way in which Mr Scott seems to have dealt with both the consequences of the physical injury and the major depressive disorder leads me to conclude that both were contributing to her incapacity for employment.[44]
[44] PCB 87, 84 and 86.
41 Mr O'Brien examined the plaintiff on 22 June 2009. On examination, Mr O'Brien found diminished movement, but nothing to suggest any neurological deficit. He did not accept that there was any organic pathology to explain the description given to him by the plaintiff of episodes of her left leg giving away. He concluded that there were signs suggesting non-organic factors at play.
42 Mr O'Brien was of the opinion that the plaintiff had suffered an aggravation of pre-existing lumbar spondylosis. He considered the plaintiff's prognosis to be poor and based upon an ongoing physical disability with evidence of illness behaviour. He did not consider that the plaintiff was totally incapacitated, however, given her overall presentation, he considered that she demonstrated a chronic pain syndrome and as a result of that overall presentation he considered that she was totally incapacitated.[45]
[45] PCB 36-38
43 Dr Kostos examined the plaintiff on 1 September 2008 for the defendant. After examining the plaintiff, he was of the opinion that there was a temporal relationship between the onset of the plaintiff’s symptoms and the incident and on that basis he was prepared to say that the plaintiff's employment was a contributing factor to the way she presented to him, however, when he was asked to clarify his opinion, he said that he was not convinced that the plaintiff had actually suffered an injury.[46]
[46] PCB 57-58 and 59
44 Dr Brown examined the plaintiff on 16 February 2009 for the defendant. On examination, he found diminished movement, but no neurological deficit. He was of the opinion that the plaintiff was suffering from lower back pain for which her work was a significant contributing factor.
45 He was of the opinion that from a physical point of view the plaintiff had a capacity to return to her pre-injury duties, however, he said that she did not have a capacity to undertake tasks which involved regular bending, heavy lifting or other strenuous manual activities. He considered that she could make a graduated return to suitable duties over a few weeks.[47]
[47] DCB1 62-64
46 Mr Shannon examined the plaintiff on 20 February 2009 for the defendant. On examination, he found diminished movement, but no neurological deficit. He was of the opinion that the plaintiff suffered a soft tissue injury to her lumbar spine. He did not consider that she had a focal disc prolapse or radiculopathy either on a clinical or radiological basis. He also commented on the presence of non-organic features in her presentation.
47 Mr Shannon was of the opinion that without the psychological problems which be observed, the plaintiff would have difficulty performing strenuous physical work. He did not consider she was fit for her pre-injury work or other work involving prolonged or repetitive bending or heavy lifting.[48]
[48] DCB1 79-80
48 Mr Shannon was the only medical practitioner who was exposed to some of the clinical notes and the CT scan taken on 15 July 1998. Mr Shannon did not have all of the clinical notes which were tendered in evidence.[49]
[49] During the trial further clinical notes of the Swan Hill Medical Group were produced and inserted into the second Court Book of the defendant at DCB2 to 99A1-39
49 Mr Shannon was asked to answer a series of questions. The actual questions were not produced by the defendant. That fact made the substance of the answers given by Mr Shannon somewhat difficult to understand. He said that the CT scan taken on 15 July 1996 showed evidence of degenerative changes and disc bulging. He was of the opinion that when a comparison was made between that CT scan and the latest CT scan, that the pathology was at the same level. He concluded by saying that the plaintiff did have lumbar disc degeneration and disc bulging, at the least in 1996, and he presumed, subsequently.[50]
[50] DCB1 75-76
50 Mr Shannon did not say that the clinical notes and the prior CT scan altered his previously stated opinion. I assume that exposing him to that material was designed to determine whether he was of the opinion that the plaintiff's prior lower back problem was of clinical significance.
What Injury Did the Plaintiff Suffer?
51 There is no doubt that the plaintiff suffered a problem with her lower back probably going back to her childhood and certainly active enough to cause such interference with her day-to-day life as to require medical intervention.
52 The evidence proves that in 1996 the plaintiff was suffering from an actively painful lower back to such a degree that a CT scan was required. The scan clearly showed degenerative changes in the plaintiff’s lower back. The clinical notes which I have reviewed above also show that the plaintiff had a chronic problem with lower back spasm requiring the prescription of Ducene.
53 Armed with that evidence and the plaintiff's failure to inform any medical practitioners of the existence of her prior lower back problem, Mr Myers submitted that the medical evidence was therefore unreliable.
54 I reject that submission. It is altogether too simplistic and fails to recognize that there are a number of markers which demonstrate that the plaintiff's prior lower back problem was not disabling.
55 Firstly, after the CT scan was taken in 1996, the plaintiff does not appear to have required any more invasive treatment than the prescription of medication for intermittent back spasms and probably lower back pain . There is nothing in the clinical notes to suggest that the back spasms were caused or contributed to by some more sinister organic process at work in the plaintiff’s lower back.
56 Secondly, the plaintiff was able to pursue employment in what I consider to be tolerably heavy work with disabled people at Yooralla, at Kerang and with the defendant. As a matter of logic and commonsense, the plaintiff could only have survived doing that work if her lower back was reasonably sound. Furthermore, an analysis of the clinical notes does not reveal that while the plaintiff was working with each of those employers that she was suffering from any noteworthy problem with her lower back after about May 2004.
57 Thirdly, I accept the submission made by Mr Monti that if the medical practitioners were exposed to those clinical notes they would probably not have made much difference to their opinions. I am fortified in reaching that conclusion because Mr Shannon was asked to review some of the clinical notes and the CT scan of 1996. He seems to have been unmoved by either.
58 Fourthly, Dr Awal has treated the plaintiff for some time. It is obvious that he is convinced that the plaintiff has suffered a significant injury to her lower back comprising a disc prolapse, presumably at the L4-5 level. The measure of his opinion as to the seriousness of the plaintiff’s lower back injury is the nature and volume of the medication he presently prescribes the plaintiff. There is little doubt in my mind that the treatment of the plaintiff with two forms of morphine, together with other painkilling medication, suggests that the plaintiff has a degree of pain which demands that level of treatment.
59 It is for these reasons that I find the plaintiff suffered an injury to her lower back as a result of the incident, probably comprising aggravation of degenerative changes in her lumbar spine probably interfering with the function of a nerve emerging from the lumbar spine, resulting in the plaintiff's symptoms of left-sided leg pain.
60 The foregoing conclusions are consistent with the effect of the evidence of Dr Awal, Professor Marshall, Mr Scott and Mr O'Brien. It is not inconsistent with the conclusions reached by Dr Brown and Mr Shannon.
61 I reject the opinion of Dr Kostos. He is the only medical practitioner to have examined the plaintiff who was not convinced that the plaintiff had suffered an injury. I consider his opinion to be so out of keeping with the preponderance of the medical evidence that it should be rejected.
62 Following on from my finding that the plaintiff has suffered an injury, it must follow that the plaintiff has suffered an impairment of the function of her lower back and inevitably has consequences which now need to be considered in the context of the statutory tests for pain and suffering and loss of earning capacity.
Serious Injury – Lower Back Injury
Pain and Suffering
63 In the plaintiff's affidavit sworn 13 June 2008, the plaintiff said that she has suffered constant lower back pain which has sometimes been severe, and when severe she rests by lying down. The plaintiff said that she has pain in her left leg with some pins and needles in her foot, particularly in her middle toes. She said that she regularly requires the use of the walking stick or crutches because of the instability associated with the pain in her lower back and left leg. She said that the pain in her leg extends into her groin and at times below the knee into her calf.
64 The plaintiff said that she is restricted in enjoying activities such as camping, gardening and playing with her grandchildren. She is unable to drive long distances. She has trouble with lifting.[51]
[51] PCB 5-6
65 In her oral evidence, the plaintiff confirmed what she said in her affidavit was true and correct. The plaintiff described the problems she presently has with her lower back. She said that she has pain in the middle of her back which goes down into her groin, into her buttocks and into her left knee. She said her knee sometimes goes numb, and she sometimes experiences pins and needles in her knee. She said she can only stand for short periods of time. She only drives short distances. She said the pain is worse in cold weather. She said the degree of the pain she experiences is 9 out of 10.[52]
[52] Transcript 6-7
66 Apart from the medication prescribed by Dr Awal, the plaintiff said that she also has physiotherapy and massage treatment.[53]
[53] Transcript 6
67 Mr Myers submitted that I should not accept that the plaintiff is as disabled as she says she is. More particularly, Mr Myers submitted the plaintiff took her crutch or stick to medical examinations more to impress the medical examiners rather than either having any real use.
68 Mr Myers referred me to the histories taken by a number of medical practitioners who recorded the reasons why the plaintiff uses a crutch or a stick. To Dr Awal she said she used a stick because she has episodes of her left leg collapsing;[54] to Dr Weissman, psychiatrist, she said that her left leg gave away which is the reason why she uses a metal elbow crutch;[55] to Dr Kostos she said because of several episodes of giving way of her left leg she was provided with a walking stick;[56] Dr Brown observed her not to have a limp, but was using a single crutch;[57] to Dr Shan she said she has to use an aluminium crutch to get about these days,[58] and to Mr O'Brien she said that because of giving way of her left leg she now uses a single crutch when ambulatory and particularly when out of the house.[59]
[54] PCB 69
[55] DCB1 44
[56] DCB1 55
[57] DCB1 62
[58] DCB1 67
[59] PCB 35
69 Mr Myers cross-examined the plaintiff on the histories given to the medical practitioners about the use by her of a crutch and a walking stick. She disavowed the use of crutch or walking stick to the extent recorded by the medical practitioners. She said her left leg has given way about ten times since the incident. Her left leg is weaker. She does not require a crutch or walking stick all the time.[60]
[60] Transcript 61
70 Mr Myers showed film of the plaintiff as follows:
ƒ 31 January 2008, commencing at about 8.41 am and ceasing at about
12.20 pm. It showed the plaintiff walking, standing and driving a car.
ƒ 26 June 2009, commencing at about 11.59 am and ceasing at about 12.32
pm. It showed the plaintiff walking, standing and driving a car.ƒ 27 June 2009, commencing at about 9.05 am and ceasing at about 9.34
am. It showed the plaintiff walking, standing and driving a car.ƒ 16 July 2009, commencing at about 9.32 am and ceasing at about 11.46 am. It showed the plaintiff walking for most of the time taken up by the film and standing and driving a car. ƒ 17 July 2009, commencing at about 8.59 am and ceasing at about 11.49 am. It showed the plaintiff walking intermittently, standing and driving a car. 71 On no occasion during what was shown on the films was the plaintiff using a crutch or a stick. Mr Myers submitted that it was inconsistent with the impression which the plaintiff wanted to create in the minds of the medical practitioners. Mr Monti submitted that the plaintiff obtained the crutch and the stick on medical advice. The entry in the clinical notes of 18 February 2008 refers to the plaintiff having a painful lower back and left ankle, and the entry of 25 February 2008 indicates that Dr Awal wrote a letter, presumably to the defendant, asking for it to pay the cost of a walking frame for the plaintiff.[61]
[61] DCB2 99A23
72 The plaintiff said that she was prescribed medication because of the onset of pain in her left ankle which she associated with her lower back injury.[62] The impression I obtained from that evidence was that the plaintiff obtained the crutch and walking stick because of problems she developed with her left ankle.
[62] Transcript 59-60
73 In her affidavit the plaintiff used the word "regularly" to describe the frequency of her use of a crutch or stick. Obviously the word regularly means something more than occasionally and less than frequently. What the plaintiff said in her affidavit is at odds with the histories recorded by some of the medical practitioners who recorded its use as being more than regularly and consistent with frequently.
74 The foregoing is to be contrasted with the evidence of the plaintiff during cross-examination where the use of a crutch or stick was described by the plaintiff as being far less than regularly and more consistent with occasionally. In any event, it is obvious that she did not use a crutch or stick on any of the five days when she was filmed.
75 Mr Monti submitted that I should accept the plaintiff’s evidence. He submitted that the log kept by the investigator showed that the investigator had run up 48 hours of work of which 27.5 were actual surveillance of the plaintiff, and that the length of the films was very short in comparison. The surveillance was conducted over a period of seven days.
76 I do not accept that the fact that the plaintiff was under surveillance for 27.5 hours permits me to infer any adverse or favourable to the plaintiff.
77 In the end Mr Myers submitted that the twofold impact of the film was to, firstly, demonstrate that the plaintiff was not telling the truth to the medical practitioners regarding the use of a crutch or walking stick, and secondly, she was able to move with freedom and showed no sign of any restriction in her capacity to walk, stand or drive a car.
78 Mr Monti submitted that the film showed the plaintiff limping, but having reviewed the film, all I was able to detect is that the plaintiff has something of a rolling gait which might be consistent with a limp, but I cannot be certain that it is without evidence of a medical practitioner turning an expert eye to the way in which the plaintiff was walking.
79 After considering all of the evidence and the competing submissions put by Mr Monti and Mr Myers, I have concluded that the consequences to the plaintiff in terms of pain and suffering deserve the description “at the least very considerable” and amount to serious injury when the relevant comparison is made as I am required to undertake that step described in my discussion of the statutory scheme.
80 It seems to me that the hard evidence which I can accept is that the plaintiff was involved in an incident which was likely to cause sufficient stress on her spine to cause the injury described by the medical practitioners whose evidence I accept.
81 I accept that the plaintiff suffers constant pain in her lower back and left leg and experiences numbness and pins and needles in her left leg. I accept that the plaintiff now has difficulty in undertaking simple movements such as standing, walking and bending and associated mechanical movements which would inevitably place stress on her lower back.
82 I accept that the plaintiff is now unable to engage in activities of a pleasurable nature such as camping, gardening, playing with her grandchildren and driving. Swan Hill is a significant distance from other major rural towns and from urban centres. The fact that the plaintiff lives in a relatively isolated locality inevitably reduces her capacity to interact with members of her family where they live in other rural localities or in urban centres. It seems to me that being able to drive for some hours is a very important factor in the life of someone who lives in an isolated country locality.
83 For the sake of completeness, I should say that I do not accept all of the attacks on the plaintiff's credit. The fact that the plaintiff may have exaggerated the use of a crutch and a stick does not derogate from the evidence which I consider to be the hard evidence of the nature and extent of the injury she suffered to her lower back and the consequences it produces. Nor do I accept that the film demonstrates much except that the plaintiff is capable of walking, standing and driving a car. It did not show the plaintiff undertaking any more vigorous physical activity.
Loss of Earning Capacity
84 I do not accept that the plaintiff has discharged the onus she bears under subsection (19)(b), in combination with subsection (38)(g), that she has satisfied the statutory test for loss of earning capacity.
85 None of the medical practitioners whose evidence I accept are of the opinion that the plaintiff has no capacity for work. Whilst it is the case that they are all of the opinion that the plaintiff could not return to her pre-injury work, the preponderance of the evidence is that the plaintiff has a capacity for other work.
86 The foregoing was certainly the opinion of Professor Marshall, Mr O'Brien and Mr Shannon.
87 Dr Awal does not appear to have addressed the issue whether the plaintiff is fit for any other work. In his report dated 1 December 2008, he was of the opinion that the plaintiff would not be able to go back to her pre-injury work.[63] Mr Scott was of the opinion that the plaintiff had no capacity for work, however, he was of the opinion that both the consequences of a physical injury and the major depressive disorder led him to conclude that both were contributing to her incapacity for employment.
[63] PCB 69
88 I reject the opinion of Dr Brown that the plaintiff has been fit for her pre-injury work. It is out of keeping with the preponderance of the medical evidence.
89 It is insufficient for the plaintiff to say that she has no capacity for work in the face of medical evidence which is to the contrary. The subsections which I have referred to make it clear that an onus is borne by the plaintiff, and that she does not prove that she has satisfied the statutory test for loss of earning capacity unless she has undergone rehabilitation and retraining in order to arrive at a position where she either has or does not have a capacity for suitable employment which she can exercise.
90 The fact that the plaintiff has not taken any steps to undertake rehabilitation and retraining in a vocational sense, and has not taken any steps to look for work in order to determine what she could do, falls significantly short of discharging the onus which she bears.
91 It occurs to me that the plaintiff does have a capacity for work. The medical evidence leads me to conclude that the plaintiff cannot return to her pre-injury work, but has a capacity for work which does not include the provocative physical activities of her pre-injury work.
Serious Injury – Psychiatric Injury
92 I am not satisfied that the plaintiff has met the statutory test for pain and suffering or loss of earning capacity.
93 In her affidavit the plaintiff said that she has suffered depression, distress and has had constant crying attacks. She has suffered mood disturbances, frustration, insomnia and anxiety. Her memory and concentration have been reduced. She has suffered energy loss and weight gain. She suffers from severe anxiety and panic attacks, and the panic attacks occur when she relives the events which she says caused her psychiatric injury or when she is near the defendant’s premises.
94 The plaintiff gave evidence that she is still depressed. She continues to have psychological counselling, and she continues to be prescribed medication by Dr Awal.[64]
[64] Transcript 7-8
95 The medical evidence relied upon by the plaintiff falls dramatically short of proving that the consequences to her are "severe".
96 In a report dated 1 December 2008, Dr Awal expressed the opinion that the plaintiff was suffering from depression for which he had prescribed her Aropax and Tegretol.[65] In a later report dated 22 May 2008, he expressed the opinion that the plaintiff was suffering from a major depressive illness with anxiety.[66]
[65] PCB 70
[66] PCB 71
97 Dr Awal referred the plaintiff to Dr Proctor, psychiatrist. The plaintiff saw him on one occasion in October 2007. In a letter to Dr Awal dated 2 October 2007, he does not express any opinion regarding the plaintiff's psychiatric injury.[67]
[67] DCB1 39
98 Dr Awal also referred the plaintiff to Ms O'Callaghan, psychologist, who has treated the plaintiff since 19 June 2007. Her opinion is rather unsatisfactory because of the way it is expressed:
"Mrs Haw’s psychological health, which has been badly affected by her experience of bullying and harassment, seems to have contributed significantly to her ongoing depression, distress and panic attacks. She would be likely to return to her former happy experience of life and work in the right environment."
99 In the following paragraph Ms O'Callaghan refers to the plaintiff’s outlook that she would still like to work as a personal care assistant in an harassment free environment.[68]
[68] PCB 94
100 The only satisfactory interpretation of the ultimate opinion of Ms O'Callaghan is that the plaintiff has suffered depression, distress and panic attacks, however, the plaintiff has not considered that those symptoms have deprived her of the motivation to look positively at returning to work in an environment absent bullying and harassment.
101 The other medical opinions paint a remarkably contrasting picture of the plaintiff.
102 Dr Entwisle, psychiatrist, examined the plaintiff for the defendant on 28 June 2007. He was of the opinion that the plaintiff had suffered an adjustment disorder with anxiety and was not only capable of returning to work, but the plaintiff expressed the view that she was keen to do so.[69]
[69] DCB1 38
103 Dr Weissman, psychiatrist, examined the plaintiff on 1 September 2008 for the defendant. He recorded the plaintiff's current physical symptoms and progress. In relation to how she felt, she told him "I'm really feeling well". In relation to her feelings of depression, she told him "No, not now, got on top of that". In relation to her the use of medication, she told him "But I'm trying not to take it, I haven't taken its (sic) some time". He told her that her concentration and memory were good.
104 Dr Weissman also recorded the plaintiff’s psychological and emotional symptoms. She told him that her emotional state was "Geez, pretty good". She told him that she had made an arrangement to be paid her weekly payments of compensation directly and as a result her "depression went away". She told him that her sleep was "fantastic". She told him that her self- esteem and confidence was "fantastic". She told him that in relation to having bad dreams she was "not having any no more".
105 Dr Weissman was ultimately of the opinion that the plaintiff’s depression and anxiety had virtually resolved. He was of the opinion that she was suffering from very mild residual symptoms of a chronic major depressive disorder or chronic adjustment disorder with depressed and anxious mood.
106 Dr Shan, psychiatrist, examined the plaintiff on 20 February 2009 for the defendant. He obtained a history of the incident which resulted in the plaintiff’s lower back injury, and also some history of the plaintiff's allegations of bullying and harassment. However, the opinion he ultimately expressed was directed to the psychiatric injury which the plaintiff suffered as a result of the incident and not as a result of bullying and harassment. He said he did not know what to make of the plaintiff's allegations about the workplace and that would seem to be because the plaintiff gave him a history in a digressive and rambling fashion.
107 Dr Shan was of the opinion that the plaintiff was suffering from an adjustment disorder which was causing her some incapacity for work. He considered she was capable of simple manual work given the fact that she had suffered a lower back injury. He did not consider that her psychiatric injury would have the effect of reducing her capacity for domestic and social activities. [70]
[70] DCB1 68-70
108 The difficulty I have with the opinion of Dr Shan is trying to determine whether that opinion is expressed based upon the secondary psychiatric injury following on the occurrence of the lower back injury alone or whether it was expressed as being the result of both the occurrence of the lower back injury and the bullying and harassment.
109 When the plaintiff gave evidence of what she said constituted the bullying and harassment, I gained the same impression as Dr Shan that her evidence was digressive and rambling. It resulted in debate with Mr Monti and Mr Myers about whether I should permit Mr Monti to undertake any re-examination of the plaintiff which might lead to an expansion of the allegations against the defendant not referred to in her affidavit.[71]
[71] Transcript 72-75
110 Mr Myers submitted that there was an absence of understanding on the part of Dr Awal and Ms O'Callaghan of the nature and extent of the psychiatric problems which the plaintiff had suffered in the past, and similarly the understanding of Dr Entwisle, Dr Weissman and Dr Shan suffered from the same defect.
111 Mr Myers referred me to the clinical notes which contain references to a prescription of Aropax for the treatment of a psychiatric disorder diagnosed a fairly long time ago which Mr Myers submitted was related to the serious problems encountered by the plaintiff’s family.
112 In the end I have disposed of the plaintiff's application for serious injury for the psychiatric injury on the basis of the evidence of the plaintiff, Dr Awal, Ms O'Callaghan, Dr Entwisle, Dr Weissman and Dr Shan without the necessity to consider her past history.
113 The history taken by Dr Weissman is in remarkable contrast to the plaintiff's evidence of the symptoms which she experienced of psychiatric injury following the bullying and harassment. Furthermore, neither of the opinions of Dr Entwisle and Dr Shan suggests that the plaintiff has a psychiatric injury of any serious dimension.
114 Potentially there is a conflict in the opinion of Ms O'Callaghan on the one hand when compared with that of those psychiatrists on the other hand. I prefer the opinions of the psychiatrists because they are better qualified than Ms O'Callaghan to express an opinion on the organic nature of the psychiatric injury suffered by the plaintiff. However, I am not convinced that the opinions expressed by Ms O'Callaghan and that of the psychiatrists are necessarily very much different.
115 I am not persuaded that the psychiatric injury is severe. The opinions of Dr Entwisle, Dr Weissman and Dr Shan do not suggest a psychiatric injury of such gravity as to deserve that description.
Conclusion
116 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of her employment with the defendant on 17 March 2007.
117 I refuse the relief sought by the plaintiff in the Originating Motion relevant to her claim arising out of the alleged bullying and harassment.
118 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
---
0
2
0